Ferguson v. Ferguson

• Decision Date: 26 April 1948
• Citation: 187 Va. 581,47 S.E.2d 346
• Parties: FERGUSON et al. v. FERGUSON et al.
• Court: Virginia Supreme Court

47 S.E.2d 346

187 Va. 581

FERGUSON et al.

v.FERGUSON et al.

Supreme Court of Appeals of Virginia.

April 26, 1948.

Appeal from Law and Chancery Court of City of Roanoke; S. L. Fellers, Judge.

Proceeding by May Ferguson and Amy F. Hendrick against Perry E. Ferguson, administrator of the estate of M. Calvin Lafew and others, to set aside an order refusing to admit will to probate and for the admission of such will to probate. The jury returned verdict finding that the paper in question was the last will of the testator. From a decree setting aside the verdict and denying probate of the will, May Ferguson and Amy F. Hendrick appeal.

Decree reversed, verdict of jury reinstated, and final order entered directing probate of the will as the last will and testament of testator.

Before HUDGINS, C. J., and GREGORY, EGGLESTON, SPRATLEY, STAPLES, and MILLER, JJ.

Woods, Rogers, Muse & Walker and Sidney F. Parham, Jr., ail of Roanoke, for appellants.

Earl A. Fitzpatrick and Hazlegrove, Shackelford & Carr, all of Roanoke, for appellees.

SPRATLEY, Justice.

M. Calvin Lafew died January 11, 1946, in Roanoke, Virginia. He had retired from his work as a carpenter in 1945. By his industry and thrift, he had accumulated real and personal property of the value of about $8,800. His wife and only child had been dead for several years. His nearest blood relatives and heirs-at-law were Henry L. Wade, James E. Wade, May Dallas Wade, Virginia Wade and Julius Wade, the last three infants, children of his deceased half-brother, Henry Wade. These relatives lived in Franklin county, Virginia.

On January 15, 1946, a paper writing purporting to be the will of Lafew was offered for probate in an ex parte proceeding in the Court of Law and Chancery of the City of Roanoke, Virginia. C. E. Trout, nominated as executor therein, made the motion. Probate was refused. Thereafter Perry E. Ferguson qualified as the administrator of the estate of Lafew.

The paper writing named Perry E. Ferguson, his wife, Mary Ferguson, and Mrs. Amy Hendrick as beneficiaries of Lafew's entire estate, with the exception of his household furniture. The furniture was bequeathed to C. E. Trout, who was nominated as administrator by the will. Perry E. Ferguson was a nephew of the testator's deceased wife and Mrs. Hendrick was the sister of the late Mrs. Lafew. The real property, constituting the major portion of testator's estate, was devised to Perry E. Ferguson. The personal prop-erty was bequeathed to "be divided between my two nieces, Mrs. May Ferguson and Mrs. Amy Hendrick, as may be agreed upon between them and the administrator, based on the time and expense each of these spent in so kindly ministering to me in my illness."

The paper writing, after disposing of the property of the testator, concluded as follows:

"Witness my mark this the 8th day of January, 1946.

"M. Calvin, Lafew

"I, C. E. Trout, a Notary Public in and for the City of Roanoke, Va. do certify that M. Calvin Lafew, being unable to write his name on account of nervousness, has made his mark to the foregoing writing, as shown above, this the 8th day of January, 1946.

"C. E. Trout

"Notary Public "My Coms. Expires April 26, 1949

"We as witnesses have this day signed our names in the presence of M. Calvin Lafew, and in the presence of each other. "Elisha J. Jacobs

"Nancy C. Ferguson"

On March 29, 1946, May Ferguson and Amy F. Hendrick instituted this proceeding under the provisions of Virginia Code, 1942, (Michie), section 5259, praying that the order in the ex parte proceedings, to which they were not parties, be set aside, and that the paper writing be admitted to probate as the true last will and testament of M. Calvin Lafew. Perry E. Ferguson, administrator, C. E. Trout, individually and as executor, the heirs-at-law of Lafew and Mrs. Mary Underwood were made defendants.

The defendants answered and attacked the validity of the will upon three grounds: First, that it was not executed in conform ity with Virginia Code, 1942, (Michie), section 5229¹; Second, that at the time of its execution, Lafew did not have testamentary capacity; and Third, that its execution was procured by fraud and undue influence.

Upon the trial of the issue of devisavit vel non, Perry E. Ferguson, May Ferguson, Amy F. Hendrick and C. E. Trout were declared the proponents of the will and the heirs-at-law of Lafew the contestants. Perry Ferguson, as administrator, was relieved of the duty of contesting the probate.

At the conclusion' of proponents' evidence, contestants moved to strike on the ground that due execution had not been shown, in that the signature of the testator had not been made or the will acknowledged by him in the presence of at least two competent witnesses, present at the same time. The trial judge ruled that Trout did not sign the will as an attesting witness; and that since it appeared Jacobs was not in the presence of Lafew at the time the latter's mark was made to the will, there remained the question whether there was a sufficient acknowledgment of the will by Lafew before Jacobs, and that was a question for the jury. To both rulings due objection was made.

The court fully instructed the jury on the issues of testamentary capacity, fraud and undue influence. It refused to give the two following instructions requested by the proponents:

Instruction No. 1. "The Court instructs the jury that if they believe from the evidence that M. Calvin Lafew made his mark on his will in the presence of C. E. Trout and Nancy Ferguson, and that C. E. Trout, in the presence of M. Calvin Lafew and Nancy Ferguson signed the will for the purpose of attesting to the fact that the mark was the mark of M. Calvin Lafew, then C E. Trout was an attesting witness, even though his name was signed to such will at a different place than was signed the name of Nancy Ferguson and E. J. Jacobs, and even though he signed his name at the conclusion of a written statement different from the statements appearing before the names of E. J. Jacobs and Nancy Ferguson."

Instruction No. 2. "The Court instructs the jury that if they believe from the evidence that this purported will of M. Calvin Lafew was signed by him in the presence of C. E. Trout and Nancy Ferguson, whose names are signed to his will, and that they in turn signed their names to his will in his presence, and in the presence of each other, then the require-ments of law as to the due execution of this will have been met."

In accordance with its holding, the court gave instruction No. 6, as follows:

"The Court instructs the jury that the paper writing here offered as the last will and testament of M. Calvin Lafew was not signed by him, or by another at his direction, in the presence of two competent witnesses, as required by law, and that in order for it to have been validly executed, it must have been acknowledged by him in the presence of Nancy Ferguson and Elisha Jacobs.

"The Court instructs you that silence or passive acquiescence by Lafew may constitute an acknowledgment as required by law, and if you believe that when Trout called Jacobs into the room and stated to him in substance--'This is Mr. Lafew's mark--I want you to sign on the first line' --that Lafew heard this statement and possessed sufficient mental capacity to understand its meaning, and to further understand the nature of the business being transacted, and was further mentally and physically capable of protesting, and did not protest, then his silence or failure to protest constitutes an acknowledgment by him of the instrument, and the burden of proving these facts is upon the proponents."

Upon consideration of the evidence and instructions, the jury returned a verdict finding that the paper writing of January 8, 1946, was the true last will and testament of Lafew. The contestants moved to set aside the verdict as contrary to the law and the evidence.

On March 20, 1947, the court sustained the motion, stating its reasons in a written opinion. In effect, the court held that, under the facts of the case, it erred in granting instruction No. 6, in that the evidence showed no participation by Lafew sufficient to constitute an acknowledgment of the paper writing as his will in the presence of Jacobs. A decree was entered in accordance therewith, setting aside the verdict of the jury and denying probate of the will.

On the questions of the testamentary capacity of the testator and fraud, the trial judge, in his written opinion, quite properly said:

"The questions involving the mental capacity of Lafew to make a will and of undue influence upon him have been decided adversely to the contestants by the jury on the question devasivit vel non. On these issues the evidence was conflicting and, therefore, the verdict of the jury is conclusive and binding on the court."

The evidence amply supports the finding of the jury.

The remaining issue related solely to questions of the due execution of the paper writing before two competent witnesses. The first question was whether Trout was an attesting witness to the will. This involves the correctness of instructions 1 and 2, and the first paragraph of instruction 6. The second question was whether Lafew acknowledged the will in the presence of two attesting witnesses.

The material evidence may be summarized as follows:

Late in 1945, due to failing health, Lafew entered Jefferson Hospital in Roanoke, Virginia, for treatment. In December of that year, his condition had somewhat improved and he desired to return to his home in the city of Roanoke. He requested his deceased wife's nephew, Perry Ferguson and the latter's wife, Mary Ferguson, who lived in Carroll county, to-come to live with him and take Care of him. This they did upon Lafew's return to his home. Perry Ferguson had formerly lived with Lafew, both in Franklin.county and the city of Roanoke. He had been regarded by Lafew with affection and esteem for over twenty years, and had been treated as a son. Mrs. Amy F. Hendrick...