Dower v. Church

• Decision Date: 02 December 1882
• Parties: TERESA DOWER et als. v. CHURCH et als.
• Court: West Virginia Supreme Court

21 W.Va. 23

TERESA DOWER et als. v. CHURCH et als.

Supreme Court of West Virginia.

December 2, 1882

Submitted Jan. 14, 1881.

SNYDER, JUDGE, Absent.^[a1]

1. Upon a bill in chancery to contest the validity of a will which has been regularly admitted to probate, the functions of the suit are exhausted when that question is decided; and if the will is declared invalid and null, it is not competent for the court to proceed in that cause further, as for instance to establish another will, which had not been offered for probate though this was also asked in the bill by the plaintiffs, the devisees in such alleged will, and though the bill alleged, that this other will had been improperly destroyed. And therefore it is not necessary for the plaintiffs in such first bill to offer any proof of the execution of such first will, before the court directs an issue of devisavit vel non as to the will probated. (p. 43.)

2. Upon a motion to set aside a verdict on such an issue of devisavit vet non, on the ground that the verdict is contrary to the evidence, the court overrules the motion and makes a decree according to the verdict, and the party moving files a bill of exceptions to the refusal of the court to set aside the verdict, and all the evidence is set out in the bill of exceptions and it is all parol evidence, the Appellate Court will reject all of the evidence of the exceptors, which is in conflict with that of the other party and if upon the evidence of the appellee, giving it full force and effect, and of that of the appellant not in conflict with it the case is in favor of the appellee the decree will be affirmed. (p. 63.)

3. If in such a case the plaintiffs in the chancery suit are the devisees under a former will of the testator seeking to set aside a later will, which had been admitted to probate and which revoked the will under which the plaintiffs claimed the heirs of the decedent should be made parties defendants as well as those parties, that claim under the will of the decedent, which had been probated. (p. 50.)

4. But if in such a case, the heirs of the intestate are not made parties, and no objection is made in the court below till after the issue of devisavit vel non has been made up and tried, and the jury has returned a verdict against the will, which has been probated, those claiming under this will cannot then be heard to object to the entering of a decree in accordance with the verdict, because the heirs had not been made parties. (p. 49.)

5. On the trial of such an issue witnesses, who have stated the facts seen by them shortly prior or subsequent to the making of the paper by the intestate claimed to be his will, which indicate the capacity or incapacity of the decedent to make a will, may give their opinion to the jury based on such facts as to whether the testator was or was not competent to transact business of importance. For though the fact, that he was not competent to transact such business, would not prove him incompetent to make a will, yet it is evidence, which in connection with the facts proven and other evidence might tend to show incompetency and is proper to be considered by the jury in trying such an issue. (p. 59.)

6. A new trial ought not to be granted for evidence discovered after the verdict is rendered, if this evidence be merely cumulative or such as ought not to affect the result; or if it appeared, that due diligence to discover the evidence was not used before the trial. (p. 57.)

7. A juryman heard, under circumstances unfavorable to his understanding clearly, a casual conversation between a witness in the case and a stranger, neither of whom knew he was a juror, in which comments were made on another witness and on the evidence. The juror remarked to one of them, that the witness criticised wanted to come back and explain his evidence, but was not allowed to do so, and that two other witnesses had contradicted him. He also said, he thought he knew how the jury stood. The stranger then asked some question, and he the juror then informed him he was one of the jury. The counsel of the party against whom the verdict was afterwards rendered, before the case was submitted to the jury, was informed by this stranger of this occurrence, but could not tell the name of the juror. The attention of the court was not called to the matter till after the rendition of the verdict.

Held:

That the circuit court did not err in refusing, under these circumstances, to grant a new trial on account of the misconduct of this juror. (p. 55.)

Appeal from a decree of the circuit court of the county of Mason, rendered on the first day of November, 1877, in a cause in said court then pending, wherein Teresa Dower and others were plaintiffs, and Ann E. Church and others were defendants, allowed upon the petition of said defendants.

Hon. Joseph Smith, judge of the seventh judicial circuit, rendered the decree appealed from.

John W. English for appellants:

The issue devisavit vel non stands on a very different footing from an ordinary issue out of chancery; it is a law issue tried under the supervision of the chancellor, and not for the information of the conscience of the chancellor, and his conscience is not necessarily satisfied with the verdict. Coalter's Ex'ors et al. v. Bryan and wife, 1 Gratt. 82, also Malone's Adm'r. et al. v. Hobbs et al. 1 Rob. 388.

The trial of said issue is directed by statute: " It is a probate jurisdiction to be exercised by the jury, not by the chancellor; his only province is to convene the parties, cause the prescribed issue to be made up and tried, with the incidental power to grant a new trial, and in granting a new trial or refusing it the court would be controlled by the rules governing courts of law with reference thereto; " (same case). Also Lamberts v. Cooper's Ex'ors, 29 Gratt. 66.

The opinion of unprofessional witnesses in regard to testamentary capacity, without the facts upon which they are based should not be allowed to go in evidence to the jury. See Redfield on Law of Wills, p. 143, sec. 12, note 20; 2 Greenl. sec. 691.

The opinions of witnesses in regard to one's competency to do business are entitled to little reward unless supported by good reasons founded on facts which warrant them. Red. Am. Cas. 194; Kinne v. Kinnie, 9 Conn. 103.

An appellate court will reverse and remand a cause for want of necessary parties although the point was not raised by demurrer in the court below. Taylor v. Spindle, 2 Gratt. 55, 72; Armentrant's Ex'ors v. Gibbons, 25 Gratt. 371; Dabney v. Preston's Adm'r, 25 Gratt. 838; McCoy's Ex'r v. McCoy's Devisees et al., 9 W.Va. 443.

A juryman should not be allowed to discuss with outside parties the manner of witnesses who have testified before them, or the weight and character of the evidence during the progress of the trial. See Vanmetre v. Kitzmiller, 5 W.Va. 380.

Before the issue devisavit vel non will be directed by the court, the parties requiring it must show themselves entitled to an interest in the result of the issue. See Code ch. 78, sec. 28.

A sentence pronounced by a court having jurisdiction, whether it be a sentence admitting a paper to probate, or excluding it from probate, so long as it remains in force binds conclusively, not only the immediate parties to the proceedings in which the sentence is had, but all other persons, & c. See Connelly v. Connelly et al., 32 Gratt. 657.

Smith & Knight for appellants.

Charles E. Hogg for appellees.

The issue in this case follows the language of the statute and this is sufficient. Coulter's Ex'ors et al. v. Bryan and wife et al., 1 Gratt. 19.

The law requiring the heir to be made a party to a suit to establish a will must be, it seems to me, where an interest is asserted in direct conflict with his interest as the legal representative of the testator. 1 Danl. Chy. Prac. (4th ed.) 232.

Applicants have not been injured by the omission of the heir at law of decedent as parties to plaintiff's bill, wherefore the court will not disturb the decree complained of. Vance v. McLaughlin's Adm' r., 8 Gratt. 289.

Objection for want of parties obviated by court refusing relief asked for against the heirs at law of decedent. 1 Danl. Chy. Prac. (4th ed.) 292, 294.

Witness may give his opinion as to testator's mental condition based upon what he saw of testator immediately before and after the execution of the instrument written in 1876. 2 Whar. Dig. 485; 11 Serg. and R. 141; Jarrett et al. v. Jarrett et la., 11 W.Va. 585; Redf. Am. Cas. on Wills, 53, 68, 69, 89, 93, 140 et seq.

Witness may give his impression as to state of affection of testator toward one claiming to be object of his bounty. 1 Greenl. Ev. (Redf. Ed.) sec. 440.

Court ought not to disturb the verdict of the jury for technical errors in the admission or rejection of testimony, this cause differing, in this regard, from an ordinary proceeding at law. Henry v. Davis, 7 W.Va. 720; Baker v. Ray, 2 Russ. Rep.

The mere conversation of a juryman per se will not be sufficient to have the court order a new trial. The correct rule on this point now is that there must be some manifest influence shown to the prejudice of a party who seeks to set aside the verdict. 1 Am.Dec. 27 note; Gunnell v. Phillips, 1 Mass. 530; People v. Boggs, 20 Cal. 432; Jackson v. Jackson, 32 Ga. 325; Perkins v. Knight, 2 N.H. 474; Nesmith v. Ins. Co., 8 How. Pr. 141.

Where the misbehavior of a jury is known before the jury retires by party seeking to set aside verdict and same is not disclosed to court before verdict is rendered, the verdict will not be disturbed on that ground. Pettibone v. Phelps, 13 Conn. 445; Stewart v. Small, 5 Miss. 525; Fessenden v. Sager, 53 Me. 531; Jackson v Jackson, 32 Ga. 325; Martin v....