Culpepper v. Robie

• Decision Date: 12 September 1930
• Citation: 155 Va. 64
• Parties: BENJAMIN FRANKLIN CULPEPPER v. ELIZABETH G. ROBIE, ET ALS.
• Court: Virginia Supreme Court

Page 64

155 Va. 64

BENJAMIN FRANKLIN CULPEPPER v. ELIZABETH G. ROBIE, ET ALS.

Supreme Court of Virginia, Staunton.

September 12, 1930.

Absent, Campbell and Holt, JJ.

1. APPEAL AND ERROR — Conflict in the Evidence — Conflict Settled by Verdict — Case at Bar. — In the instant case, a contest of a will, it was necessary to consider all material conflict in the testimony as settled by the verdict in favor of the contestants.

2. TESTAMENTARY CAPACITY — Weight to be Attached to Evidence of Attesting Witnesses. — The testimony of attesting witnesses to documents is entitled to "great weight" on the question of testamentary capacity, or as sometimes expressed, to "peculiar weight." This "great weight" should be given to the evidence of subscribing witnesses as to the execution of the instrument. But even as to this act, such evidence is not conclusive.

3. TESTAMENTARY CAPACITY — Evidence Sufficient to Justify a Submission of the Question to a Jury — Case at Bar. — In the instant case, a will contest, the subscribing witnesses, the testator's attending physician, and the attorney who prepared the will, all testified that the testator's mind was all right. Sixty-five witnesses were examined, including five doctors and three lawyers. Witnesses on both sides who had equal opportunity to observe the condition of the testator's mind disagreed in their opinions and as to the facts on which their opinions were based.

Held: That there was sufficient evidence on which to submit the issue of testamentary capacity to the jury.

4. APPEAL AND ERROR — Rule 22 of the Supreme Court of Appeals — Improper Admission of Evidence — Evidence that Complainants were Members of Certain Fraternal Orders — Case at Bar. — In the instant case, a will contest, it was assigned as error that the trial court improperly admitted evidence showing that some of the contestants were members of certain fraternal orders. While under Rule 22 of the Supreme Court of Appeals this assignment could not be considered, it might be said that this evidence was offered after the proponent of the will had proven that two of the contestants belonged to a certain religious congregation. Under such circumstances there was no error in admitting this evidence. Injection of religious prejudice into a case has no place in a court room.

5. TESTAMENTARY CAPACITY — Undue Influence — Testimony of Attorney who Drew the Will. — In the instant case, a will contest, the attorney who drew the will was an active participant in the trial below, and had made no charge for his service in preparing the will. He was a stranger to the testator until called in to prepare the will. His testimony, therefore, could not be considered disinterested.

6. WITNESSES — Attorneys — Weight Attached to Attorney's Testimony. — When an attorney engaged in a case becomes a witness to other than formal matters, his testimony should not as a matter of law be entitled to any greater weight than that of a lay witness.

7. TESTAMENTARY CAPACITY — Undue Influence — Testimony of Attorney Who Drew the Will — Instructions — Case at Bar. — In the instant case the object of an instruction was to inform the jury that the evidence of a reliable attorney who prepared the will and explained it to the testator and was present at its execution was entitled to great weight, but such an instruction is not proper on the subject of undue influence. The contestee was entitled to have the jury consider this evidence on that question, but was not entitled to have this particular evidence singled out and the jury told what weight to give it.

8. APPEAL AND ERROR — Harmless Error — Instructions Corrected by Other Instructions Given in the Case — Case at Bar. — In the instant case the contestant asked for an instruction that the testimony of the attorney who drew the will was entitled to very great consideration as to mental capacity. The court amended this instruction by striking out the words "very great" and adding "but has no special bearing upon undue influence."

Held: Harmless error, as other instructions told the jury the weight that should be given to the testimony of witnesses.

9. UNDUE INFLUENCE — Question for Jury — Case at Bar. — In the instant case the trial court correctly refused a peremptory instruction taking from the jury the question of undue influence, the evidence thereon being conflicting.

10. UNDUE INFLUENCE — Species of Fraud — Burden of Proof on Party Asserting Undue Influence. — The theory which underlies the doctrine of undue influence is that it is a species of fuaud and, like all allegations of fraud, the burden is on the party who alleges undue influence to prove it by a preponderance of evidence.

11. UNDUE INFLUENCE — What Constitutes Undue Influence — Free Agency. — Before undue influence can be made a ground to set aside or vitiate an act it must be sufficient to destroy free agency, and any suggestion, advice, or even importunity which falls short of destroying free agency is not undue influence. Any means which induces a testator to execute an instrument which, although his in outward form, is in reality not his will but the will of another person is undue influence.

12. UNDUE INFLUENCE — Question of Fact — Evidence Usually Circumstantial. — Undue influence is essentially a question of fact and from its nature is frequently employed surreptitiously. It is shown chiefly by results, and hence the evidence to establish undue influence is usually circumstantial.

13. UNDUE INFLUENCE — Facts When Taken Together May Establish Undue Influence, Though Each Fact by Itself May be Insufficient. — Each fact by itself may be insufficient to establish undue influence, although the facts when taken together may justify, and even require, such a finding.

14. UNDUE INFLUENCE — Depends upon the Facts and Circumstances of Each Particular case. — No abstract standard of undue influence can be set up. The question of what is undue influence such as to overcome the will or control the judgment of the testator depends upon the facts and circumstances of each particular case.

15. INSTRUCTIONS — Repetition. — Where the instructions given substantially cover the issues and the evidence, the refusal of the trial court to give other instructions is not reversible error.

16. UNDUE INFLUENCE — Evidence to Support a Verdict of Undue Influence on the Part of the Beneficiary in a Will — Presumption of Undue Influence — Case at Bar. — In the instant case, a will contest, there was sufficient evidence to sustain the verdict of the jury against the validity of the will on the ground of undue influence by the beneficiary, and under these circumstances it was not error for the court to give an instruction to the effect that if the jury at the time the will was made believed that the testator was an old man in the house of the beneficiary, and that the beneficiary stood in relation of confidence or dependence towards the testator, and that the will left all the testator's property to the beneficiary, and differed from the previously expressed intention of the testator, these facts raised a presumption of fraud and undue influence, which should be overcome by satisfactory evidence before the will should be allowed to stand.

17. UNDUE INFLUENCE — Inference of Undue Influence — Presumption of Fraud. — That the testator was old; that he had previously expressed an intention to otherwise dispose of his property, and that the beneficiary stands in a relation of confidence or dependence to the testator, are not sufficient in themselves to raise a presumption of fraud. These are circumstances from which undue influence may be inferred, but are not alone sufficient to establish fraud, certainly not as between parent and child or husband and wife.

18. UNDUE INFLUENCE — Facts Held to Sustain Verdict that Will was Obtained by Undue Influence — Case at Bar. — In the instant case, a will contest, the evidence disclosed that the intimacy between the testator and the beneficiary under the will was of recent origin and did not arise by reason of long friendship or close blood ties; that within a few months before the execution of the will testator had repeatedly expressed an intention to dispose of his property to his relatives and to those with whom he had long been associated, that testator was weak in mind and body; that within less than a month of his death his entire estate was transferred from his own bank with which he had transacted his business for years to one of the banks with which the beneficiary transacted his business; and that within three days after the testator was moved into the home of the beneficiary he converted his bonds into cash and made large gifts to the beneficiary and his family, totalling five-ninths of his estate.

Held: That this evidence sustained the verdict of the jury that the will was obtained by undue influence.

19. UNDUE INFLUENCE — Evidence — "Satisfactory" — "Clear, Cogent and Convincing" — Case at Bar. — In the instant case, a contest of a will, the contestants asserted that the will was obtained by undue influence. In an instruction the court, in speaking of the evidence necessary to establish undue influence, used the word "satisfactory" instead of the words "clear, cogent and convincing." In instructions requested by both the contestee and the contestants the court had used the word "satisfactory," and the court used it in the nstruction in question in order to be consistent.

Held: That the jury could not have been misled thereby.

20. VERDICT — Testimony of Jurors to Impeach Verdict. — Affidavits or the testimony of jurors to impeach their own verdicts are to be received with great caution and only in exceptional cases, and in order to prevent a failure of justice.

21. VERDICT — Testimony of Jurors to Impeach Verdict — Case at Bar. — In the instant case, on the day that a motion for a new trial was heard, the foreman of the jury was introduced as a witness to impeach the verdict....