Dingbs et al. v. Branson et al

• Decision Date: 16 November 1878
• Citation: 14 W.Va. 100
• Parties: Dingbs et al. v. Branson et al
• Court: West Virginia Supreme Court

14 W.Va. 100

Dingbs et al.

v.Branson et al

Supreme Court of Appeals of West Virginia.

Decided November 16, 1878.

1. Where an instruction asserts a proposition apparently erroneous and is given, and excepted to, thejudgment should be reversed, though it is not shown, whether in fact the instruction prejudiced the appellant, or not.

2 The declarations of a testator, or grantor, made either before, or after, the execution of the instrument, are admissible evidence, where the issue involves the mental capacity of the. testator, or grantor, at the time the instrument was executed, or undue influence exerted over him at that time.

3. If under any circumstances such declaration should be rejected because too remote from the execution of the instrument, before they would be rejected, the record would have to show when, and the circumstances under which, they were made.

4. Where a father has made a voluntary conveyance to his son of a part of his estate, and a contest arises subsequent to the lather's death, as to the competency of the father to make the deed, and as to whether undue influence was exerted over him by the grantee to induce him to make it, the declaration of the grantor, both before, and after the execution of the deed, are admissible, the same as if the contest was about a will devising the same estate.

5. The bill was filed to set aside a deed, alleged to have been made when the grantor was of unsound mind, and procured to be made by the grantee by undue influences exercised over the grantor, and also for partition of the estate among the heirs at law; the grantee, who was one of the heirs at law, files his answer, putting in issue the charges as to the incompetency and undue influence, and disclaims any further interest in his father's lands, than was secured to him by the deed. The deed is held good, and the bill dismissed, with.-costs as to the grantee. Held:

This was not to the prejudice of the appellants.

Appeal from and supersedeas to a decree of the circuit court ot Hardy county rendered on the 1st day of August, 1876, in a suit in chancery in said court then pending, in which David A Dinges and others were plaintiffs, and Joseph F. Branson and Lionel F. Branson were defendants, awarded on the petition of said plaintiffs.

Hon John Blair Hoge, judge of the third judicial circuit, rendered the decree appealed from.

Johnson, Judge, furnishes the following statement of the case:

On the 21st of July, 1862, William Branson of Hardy county died intestate, leaving the plaintiffs and defendants, his heirs at law. He was about seventy-three years of age when he died. He was seized of a number of tracts of land in said county, amounting to aver twenty-one hundred acres. The bill was filed by the heirs at law, other than Joseph and Lionel F. Branson, against the said Joseph and Lionel. It was filed for a partition of the real estate, of which said William Branson died seized, and to set aside and annul a deed made by said William Branson to the said Joseph Branson for four valuable tracts of said land, two of said tracts known as the'Fravel lands and another containing one hundred and fifty-nine acres and the other twenty-nine acres, on the ground that when said deed wras executed, on the 8th day of July, 1862, William Branson was of unsound mind, not competent to execute a deed; that he was suffering from paralysis, by which he had been stricken down five weeks before his death; that the said Joseph Branson exerted an undue influence over his father, and by fraud and undue influence by him practiced upon his father he, the said Joseph F. Branson, procured the said deed to be executed.

The prayer of the bill was, that the said deed be vacated and annulled, and that partition of the said lauds be made among the said heirs, &c.

The defendant, Joseph F. Branson, answered the bill, denying all the allegations and charges of the bill impeaching the validity of said deed, and particularly denying the charge, that his father was mentally incompetent to execute said deed, and also denying all fraud or undue influence, charged against him in the bill.

Testimony was taken on both sides; and on the 10th day of March, 1875, "the cause came on to be heard, &c.," and the court directed an issue, to ascertain the fact "whether the paper writing dated on the 8th day of July, 1862, be the true deed of William Branson, deceased, at the time of the execution thereof."

On the 1st day of August, 1876, the issue was tried; and, the jury found, that the paper writing was the deed of William Branson. On the same day the court entered a decree in accordance with said verdict; and Joseph F. Branson having in his answer waived any right to participate in the partition of his father's real estate, the decree dismissed the bill as to said Joseph F. Branson, with costs.

The bill of exceptions shows, that upon the trial of the issue the counsel of Joseph F. Branson propounded to Jacob Vanmeter, a witness for said defendant, the following question: "State whether you ever had any conversation with William Branson prior to July 8, 1862, and prior to his last sickness, in regard to his real estate, and the disposition he meant to make of the same in whole or in part, and especially in reference to his son Joseph; and if so state what he said, what reasons he gave for such intended disposition of it"? To which question, the plaintiffs, by their counsel objected, as improper and irrelevant; but the court overruled the objection, and admitted the answer to said question; and the plaintiffs excepted. But the record nowhere discloses what answer was given to the question.

The bill of exceptions further shows, that "by consent of parties, by their counsel, in order to bring distinetly and fully before the jury the extent and purpose, to and for which the said testimony was admitted, and to supercede the necessity for a distinct instruction, the court by like mutual consent prepared and laid before the jury a memorandum of said instruction as follows: "The jury is instructed, that the declarations, made by William Branson prior to his last sickness in regard to his intention to make disposition of a portion of his lands, is to be considered by the jury as bearing upon his capacity to make the deed of July 8, 1862, at the time of its execution. In other words these declarations are not admitted as evidence to show, that a continuing and contemplated purpose was then executed, but only to show, if the jury so find from the evidence in the case, that when the deed was executed, he had mental capacity to recollect a former intention, re-adopt and approve it, and carry it into effect. The jury is also instructed, that these declarations of his purpose must not be received as conclusive of the question, whether they may or may not have been retracted and abandoned. That is a question for the jury to determine from the evidence." To which instruction the plaintiffs excepted. These two points are all that the bill of exceptions contains. From and to the final decree aforesaid an appeal and supersedeas was allowed.

Andrew tinnier, for appellants.

Robert White, for appellee Joseph F. Branson, cited the following authorities:

10 Gratt. 1; 25 Gratt. 887; 10 W. Va 122; 15 Gratt. 551; 11 Gratt. 210; Id. 182; 7 W. Ya, 715; 12 Gratt. 717; 11 W. Va. 584; 1 Pen. & Watts. 32; 5 Rand. 211; 2 Munf. 187; 8 Conn. 254; 4 Wash. C. C. 265; 9 Conn. 102; 14 Penn. St. 159; 7 Serg. & 11. 94; 8 Serg. & 11. 573; 1 Hawks 248; 3 Den. 442; 29 Conn, 399; 4 Allen 512; 1 Kernan 157; 4 Dutch. (N. J.) '274; 4 Bradf. 138; 3 W. Va. 629; 40 Penu. St. 483; 17 Ala. 55; 10 W. Va. 156; 7 W. Va. 715; 11 W. Va. 94.

Johnson, Judge, delivered the opinion of the Court: It is here insisted by counsel for appellees, that the court cannot reverse the decree, because the record does not show, that the witness answered the question propounded to him, and as the answer does not appear, the court cannot say, that the appellant was prejudiced by such answer. But the instruction given by the court is excepted to, and this Court has held in Strader v. Gojf) 6 W. Va. 257, that when an instruction asserts a proposition apparently erroneous, and is given and excepted to, the judgment should be reversed, though it is not shown, whether in fact the instruction prejudiced the appellant, or not. The question therefore properly arises here: Was the said instruction erroneous? The issue tried was " whether, the paper writing dated on the 8th day of July, 1862, be the true deed of William Branson, deceased, at the time of the execution thereof." The bill alleged, that at the time of the execution of said deed the said Branson had not sufficient mental capacity to make it; and that the said Branson being of feeble mind the said Joseph Branson exercised undue influence over him, and thus induced him to make the said deed. The answer denies, that he was of unsound mind, or that said Joseph Branson exercised any undue influence over him. The court instructed the jury," that the declarations made by William Branson prior to his last sickness in regard to his intention to make disposition of a portion of his lands are to be considered by the jury, as bearing upon his capacity to make the deed of July 8, 1862, at the time of its execution, In other words these declarations are not admitted as evidence to show, that a continuing and contemplated purpose was then executed, but only to show, if the jury so find from the evidence in the case, that when the deed was executed, he had mental capacity to recollect a former intention, re- adopt and approve it, and carry it into effect. The jury i. is also instructed, that these declarations, of his purpose must not be received as conclusive of the question, whether they may, or may not, have been retracted or abandoned. This is a question for the jury to determine from the evidence."

Does this instruction assert an erroneous proposition? Upon the trial of an issue involving...