Dower et als. v. Seeds et als.

• Decision Date: 31 March 1886
• Parties: Dower et als. v. Seeds et als.
• Court: West Virginia Supreme Court

28 W.Va. 113

Dower et als.

v.Seeds et als.

Supreme Court of Appeals of West Virginia.

Submitted January 27, 1886.

Decided March 31, 1886.

1. A court ought not to permit a special replication to be tiled to an answer in chancery, unless affirmative relief be asked by the answer; but if there be a general replication tiled to the answer, at the same time such special replication is improperly permitted to be filed, Mbut no deposition or other evidence is read at the hearing, which could not have been properly read, had only the general replication to the answer been filed, and the court renders just such a decree, as it should have rendered, had no special replication been filed, the appellate court will not reverse such decree, simply because the court erroneously permitted such special replication to be filed, (p. 128.)

2. A testator in 1868 made a will devising and bequeathing all his property to two adopted daughters. In 1876 he executed a few days before his death another paper purporting to be his will, whereby he devised and bequeathed all his property to one of the adopted daughters saying nothing about the other, who was still living. This last paper was probated in the county court; but subsequently the probate was annulled by a decree in chancery in a suit brought by the other adopted daughter, and this last paper wa» declared not to be the will of the deceaesd. This last paper can not be relied upon by the heirs of the deceased as a revocation of the will of 1868, though they were not parties to the chancery suit, in which this last paper was declared to be null and void and Inoperative as a will. (p. 130.)

3. This will of 1868 was by the direction of the testator, given, when he executed the last paper purporting to he a will, a few days before his death, destroyed by his wife by burning (not in the presence of the testator and most probably not till after his death). This burning of this will by the testator's direction not having been done in his presence even if done before his death could not operate as a revocation, (p. 137.)

4. A court of probate, unless forbidden to do so by a statute, may ad-

mit to probate a will, which has been lost, suppressed or destroyed; or such a will may be established by the decree of a court of chancery upon a bill brought by the devisee or legatee against the heir or distributees. In either case the order establishing the will should set forth its contents, that it was duly executed by the testator, when he was of sound mind and disposing memory, and by whom it was witnessed, and show that it was attested in the manner required by the law. The decree should also direct this order including the will so established by it to hv recorded in the proper will-book, which would be done by recording a copy of the order of the probate court or a copy of the decree of the chancery court, as the case might be. (p. 139.)

5. Before a will, which has been lost, suppressed or destroyed, can

be thus probated by an order of a circuit court acting as an appellate probate court upon an appeal from an order of the county court either admitting or refusing to admit such will to probate, the court must, if requested by any party interested, direct an issue of devisavit vel non to be tried by a jury: and so too in a chancery cause to set up such lost, suppressed or destroyed will, before a decree can be rendered setting up such will, if either party to the suit requests it, the court should direct an issue of devisavit vel non to be tried by a jury. (p. 157.)

6. Before such issue of devisivat vel non is directed either by the circuit court acting as an appellate court of probate or by a court of chancery on a bill to establish a will, which is claimed to have been lost, suppressed or destroyed, such circuit court as appellate probate court or such court of chancery, as the case may be, must first determine, that the alleged will has been destroyed, suppressed or lost, and secondly it must determine the contents of this will. And the jury on such issue are to determine, whether the will, contents of which are thus ascertained, lathe last will and testament of the testator, or whether any part and, if any, what part of the contents of this last will is the true last will and testament of the testator; and when the jury shall render its verdiot, it should be held conclusive, as to what was the last will and testament of the testator and as to whether any part of the will submitted to them was his last will, unless a new trial be awarded; and the circuit court as such appellate court of probate or the court of chancery, as the case may be, should set tip and establish in the manner before stated the will as found by by the jury as the last will and testament of the testator and have it recorded as such in the manner before indicated, or should refuse to establish any part of the will, which was submitted to the jury, as the will of the testator, if the verdict of the jury requires such order or decree, (p. 157.)

D. S. Hounshell for appellants.

J. W. English, C. E. Hogg and./. B. Menager for appellees.

Statement of the case by Green, Judge:

John J. Weaver was married Dec. 29, 1829, and lived with his wife till his death, July 15, 1876. He never had any children by her, but after he^had been married some twenty years, he had habitual intercourse with one Anna Maria Weaver. Tn 1850, while such illicit intercourse existed, she had a daughter, Anna Eliza, who afterwards marriad George Church. There was some uncertainty as to her paternity, Weaver not believing her to be his child, but when not more than six months old she was taken to his home and there reared by him and his wife, till she was seventeen years old, when she married. About a year after the birth of Anna Eliza Anna Maria Weaver gave birth to another daughter, Maria Theresa. She was born at Weaver's house and was admitted by him to be his child; but she never lived there but lived with her mother and married with her father's approval Patrick Dower, the marriage taking place aboutthe time her sister was married. Shortly afterwards, in the autumn of 1868, Weaver, who owned a large amount of real and personal property, made his will, whereby after the payment of his just debts and funeral expenses he devised and bequeathed all his estate both real and personal to his wife, Angelina Weaver, for and during her natural lite and after her death to Theresa Dower and Anna Eliza Church and their heirs forever in equal moieties appointing his wife Angelina Weaver his executrix with the provision, that she should not be required to give any bond as such executrix. This will was executed by John J. Weaver, he being of sound mind and memory, and published as his last will and testament, he subscribing his name thereto in the presence of Richard Spencer and William Dilcher, who subscribed their names as witnesses thereto at his request in hispresence and in the presence of each other. The wife of the testator, Angelina Weaver, knew the contents of this will and never was satisfied with it. She was unwilling that Theresa Dower should have any portion of her husband's estate, but desired that after her death the whole estate of her husband real and personal should go to Anna Eliza Church, who had been raised by her. But Weaver, the testator, seemed satisfied with it and frequently so said to others. These declarations were made by him from time to time up to as late as January 5, 1876, ten days before his death, and were then made, while he was dangerously ill, confined to his bed afflicted with a cancer in th§ stomach, of which he died.

Four days after he thus declared himself satisfied with this will, which he had made in 1868, he made another will upon January 9, 1876, which was a Saturday, whereby he devised and bequeathed all his property real and personal to his wife tor life, remainder in fee to Anna Eliza Church the wife of George Church, and her children, making no mention of Maria Theresa Dower, his illegitimate daughter. This last will was admitted to probate by the county court of Mason on January 24, 1876, it having been presented by the executrix, Angelina Weaver, and proven by the attesting witnesses J. C. Brinker, a nephew of the testator, and L. II. Bridgeman, who also wrote the will.

Theresa Dower and her husband Patrick Dower insisted that the testator, when he made this last will, was incompetent to make a will, his mind being then affected by the large quantity of morphine, wdiich for several days the physicians had administered to him to relieve the intense pain he was suffering, and that he was also unduly influenced by his wife and while in this state of mind induced by her to change his will and to give all his property after her death to Anna Eliza Church and her children to the exclusion of Theresa Dower. On May 26, 1877, she, her husband and their infant children brought a suit in chancery in the circuit court of Mason county, making defendants Anna Eliza Church and her husband George Church and Angelina Seeds, late Angelina Weaver, she having married James M. Seeds, and her then husband, James M. Seeds, and the four infant children of.

Anna Eliza Church and George Church. The object of this suit was to have the paper dated January 9, 1876, which had been admitted to probate as the will of John J. Weaver, declared not to be his will, and the probate thereof annulled. And the bill also asked, that the will made in 1868 might be sel up and established as the last will and testament of John J. Weaver, and alleged that it was lost or destroyed.

On October 16, 1877, after answers were filed to this bill and some depositions taken, the court at the instance of the plaintiffs decreed, "that an issue be tried before a jury at the bar of this court to ascertain, whether any, and if any, how much of the paper probated by the county court of Mason county, West Virginia, on January 24, 1876, was the will of John J. Weaver,...