Ebert. v. Ebert

• Decision Date: 06 December 1938
• Docket Number: (No. 8745)
• Citation: 120 W.Va. 722
• Court: West Virginia Supreme Court
• Parties: Arthur Cecil Ebert et al. v. Clara Augusta Ebert

120 W.Va. 722

Arthur Cecil Ebert et al.

v.Clara Augusta Ebert

(No. 8745)

Supreme Court of Appeals of West Virginia.

Submitted September 27, 1938.

Decided December 6, 1938.

1. Wills

Where the legal capacity of a testator to make a will is admitted or proven, the fact that his will may be unequal, unjust or unreasonable is not, alone, sufficient to invalidate it; but may be considered, along with other established facts, on the question of alleged undue influence entering into the execution thereof.

2. Wills

While a testator of sound mind may be the subject of undue influence bearing upon the making of his will, more proof of such influence is required than where the testator is suffering from physical infirmity or weakness of mind.

3. Wills

Undue influence, such as will invalidate a deed or will, is never presumed, but must be established by proof, either direct or circumstantial.

4. Wills

Undue influence, such as will invalidate a deed or will, must be such as amounts, in legal effect, to force and coercion, exerted in a manner to bring about the execution thereof; but such force or coercion need not be physical, or applied at any particular time. The cumulative effect of repeated acts may establish such undue influence.

5. Wills

Influence acquired by a wife over her husband through long association, or acts of kindness and persuasion or entreaty based thereon, is not the exercise of undue influence such as will invalidate a deed or will to the wife.

6. Wills

The will of a testator of sound mind will not be set aside without clear proof of fraud, duress, coercion or undue influence exerted by the beneficiary or other person to procure its execution. Mere opportunity to exert such influence, or proof of acts tending to create suspicion with respect thereto, is not sufficient.

7. Trial

Upon an issue of devisavit vel non, tried before a jury, the court may, in a proper case, direct a verdict, or set aside the same.

Error to Circuit Court, Wood County.

Proceeding in the matter of the alleged will of Charles Bennett Ebert, deceased, which was offered for probate by Clara Augusta Ebert, and which was contested by Arthur Cecil Ebert and another. To review a judgment of the circuit court setting aside a verdict in favor of the contestants and awardng the proponent a new trial, the contestants bring error.

Affirmed,

J. J. Yankiss, Francis P. Moats, Richard C. Moore and Wm. Bruce Hoff, for plaintiffs in error.

Ambler, McCluer & Ambler, for defendant in error.

Fox, Judge:

Charles Bennett Ebert, whose domicile was in Wood County, West Virginia, died on the 26th day of August, 1936, leaving a last will and testament, which, omitting the signature, is in the words and figures following:

"Will of; Charles Bennett Ebert, of Parkersburg, Wood County, West Virginia.

"Not unmindful of my sons, Arthur Cecil and Millard Earl Ebert, I give all my estate both real and personal to my wife, Clara Augusta Ebert, in fee simple. My wife to be administratrix of my estate, without bond.

"Drawn at Parkersburg, Wood County, West Virginia, this sixteenth (16th) day of January, nineteen hundred and thirty-three (1933)."

The body of the will and signature thereto are in the handwriting of the testator, and the will was witnessed by Laura B. Oliver and A. G. Oliver, who signed their names as subscribing witnesses to a typewritten attestation thereof.

The will was offered for probate in the county court of Wood County on September 5, 1936, by the beneficiary thereunder, and on that day Arthur Cecil Ebert and Millard Earl Ebert, sons and sole heirs-at-law of the testator, filed in said court their notice of contest, wherein it was charged:

(1) "The said purported last will and testament was not executed in compliance with the formal requirements of law in relation to the execution of a last will and testament."

(2) "The purported last will and testament, now offered for probate, by Clara Augusta Ebert, the sole beneficiary and administratrix named therein, was made and executed as the result of fraud, duress, coercion, and undue influence used, practiced upon and exercised over the said Charles Bennett Ebert prior to, at and subsequent to the time of the making and execution of said will."

(3) "The said Charles Bennett Ebert lacked the required capacity to make andf execute a valid will at the time of the making and execution of said purported Will."

As stated in the brief filed by the contestants, the first and third grounds of contest were not urged, except to the extent of formally placing upon the proponent the burden of proof as to matters mentioned therein. This controversy, therefore, is confined to the allegation of fraud, duress, coercion and undue influence contained in the second paragraph quoted above.

When notice of contest was filed in the county court, the case was referred to a commissioner under the provisions of Code, 44-3-7. The commissioner to whom the case was referred resigned, and it was then re-referred to another commissioner. A hearing was had resulting in a report by the commissioner sustaining the Will, and this report was confirmed by the county court of Wood County, whereupon the matter was appealed to the circuit court of Wood County and a trial de novo had, resulting in a verdict in favor of the contestants. This verdict was upon motion of the proponent set aside, and a new trial awarded the proponent, to which action of the court the contestants prosecute this writ of error.

Charles Bennett Ebert was seventy-two years of age at the time of his death. He was born in the City of Parkersburg, spent the greater part of his life there, and occupied a prominent place in the business and civic life of that community. From his mother, who died in 1920, he inherited as her sole heir-at-law real estate and other property, of the value of approximately $60,000.00. In his early life he was engaged in the manufacture of brick in Parkersburg, and for a number of years prior to 1911, he followed the occupation of installing brick plants throughout the country, and spent a good part of his time away from Parkersburg. In 1911 he returned to Parkersburg and resided there until his death, having no particular occupation except that of looking after his extensive business interests principally connected with the management of his real estate, most of which he had inherited from his mother. He is shown to have been a man of good business judgment, firm in his opinions and not easily influenced. He remained in good health until immediately before his death, and there is no question raised upon the record in any way tending to show any lack of mental or physical vigor.

He was three times married. He first married Laura Richardson on July 1, 1886; of this marriage two children were born, Arthur Cecil Ebert, in 1887, and Millard Earl Ebert, in 1889, both of whom survived the testator and are the contestants in this proceeding, and will be hereinafter referred to as Cecil and Earl. Laura Richardson Ebert died in 1894. On July 4, 1898, the testator married Elizabeth Daisy Hagerty, from whom he obtained a divorce in 1908. On September 14, 1911, the testator married Clara Augusta Ripley McCoy, who then lived in Detroit, Michigan, and immediately following this marriage, he and his wife came to Parkersburg where they resided up to the date of his death. No children were born of the second and third marriages.

It appears from the record that upon the death of Laura Richardson Ebert in 1894, the testator made arrangements for the rearing of his two children, the contestants herein, and first placed them in the home of his mother, Frances V. Ebert, who then resided in Parkersburg. When about twelve years of age, Cecil was sent to a school in Pittsburgh and Earl, then about ten years of age, was placed by his father in the home of his paternal aunt, Sallie Lang, who then lived in Clarksburg. Cecil remained in Pittsburgh for about a year, and then went to the Lang home in Clarksburg. When about eleven years of age, Earl, without his father's consent, left the Lang home and went to the home of his maternal grandparents, William and Margaret Richardson, in Parkersburg, apparently at the instigation of his maternal kin, where he remained until he joined his father in Detroit about the year 1909. Cecil remained with Sallie Lang in Clarksburg for about a year after the departure of Earl, and then went to the home of his paternal grandmother, Frances V. Ebert, in Parkersburg, where he remained until he was about fifteen years of age when he, too, went to the home of his maternal grandparents, where he remained until he joined his father and Earl in Detroit about the year 1909. When Cecil was about fifteen years of age, it is in evidence that his father severely corrected him by the use of a horsewhip, which caused him to flee to the home of his maternal grandparents, and as the outgrowth of this incident, William Richardson, Cecil's maternal grandfather, swore out a warrant for Charles Bennett Ebert, and Cecil testified against his father at the trial on said warrant. Later, some one of the maternal kin of Cecil instituted suits against Charles Bennett Ebert for the maintenance of his two sons, which appear to have been finally settled in a compromise entered into on May 3, 1907. This family history is related for the purpose of showing the relations between the father and his two sons prior to 1909. when it seems they reconciled their differences at the time they joined each other in Detroit.

But this is not the full picture of the relationship between this father and his two sons. The younger son, Earl, married in Detroit and lived there until early in 1933. His father was at one time engaged in business with him, which proved unsuccessful and the accumulated indebtedness of the enterprise was paid by the father. From time to time, money was furnished to Earl by his father, notes endorsed for him which were not paid by the maker but were paid by ...