Ferguson v. Ferguson

• Decision Date: 23 September 1937
• Citation: 169 Va. 77
• Court: Virginia Supreme Court
• Parties: H. B. FERGUSON v. C. M. FERGUSON, ET ALS.

Page 77

169 Va. 77

H. B. FERGUSON v. C. M. FERGUSON, ET ALS.

Supreme Court of Virginia, Staunton.

September 23, 1937.

Present, Campbell, C.J., and Holt, Hudgins, Browning, Eggleston and Spratley, JJ.

1. WILLS — Contest — Limitation of Actions — Section 5259 of the Code of 1936 — Nothing to Indicate Legislature Intended Amendment to Be Retroactive. — Prior to the amendment of 1934, section 5259 of the Code of 1936 permitted two years within which to file a bill for the impeachment of a will. The amendment charged the time of the limitation from two years to one year.

Held: There is nothing in the language of the amendment which declares or indicates that the legislature intended to give to it a retrospective operation.

2. LIMITATION OF ACTIONS — Prospective or Retrospective Construction — Presumption of Prospective Operation. — Statutes of limitation are presumed to be prespective and not retrospective in their operation, in the absence of a clear legislative intent to the contrary, and the presumption is against any intent on the part of the legislature to make such a statute retroactive.

3. STATUTES — Construction — Prospective or Retrospective Construction — When Words Given Retrospective Operation. — Words of a statute ought not to have a retrospective operation unless they are so clear, strong and imperative that no other meaning can be annexed to them, or unless the intention of the legislature cannot be otherwise defined.

4. STATUTES — Construction — Prospective or Retrospective Construction — Presumed Prospective When Retrospective Effect Would Work Injustice. — Statutes will be presumed to have been intended by the legislature to be prospective and not retrospective in their action where a retrospective effect would work injustice and disturb rights acquired under the former law.

5. STATUTES — Construction — Prospective or Retrospective Construction — Legislative Sanction of Rule of Prospective Construction — Section 6 of the Code of 1936. — The general principle that statutes should be given a prospective rather than a retrospective construction, has been given statutory approval by section 6 of the Code of 1936.

6. LIMITATION OF ACTIONS — Prospective or Restrospective Construction — General Rule Applies. — Statutes of limitation, or remedial statutes, are included in the general rule that retroactive or retrospective legislation is not favored, in the absence of any words expressing a contrary intention.

7. STATUTES — Construction — Prospective or Retrospective Construction — When Legislature May Declare Statute to Have Retroactive Effect. — The legislature may declare a statute dealing with remedial legislation, or one not affecting vested rights, to have a retroactive operation.

8. STATUTES — Construction — Prospective or Retrospective Construction — Evidence of Intention. — Failure of the legislature to express an intention to make a statute retroactive evidences a lack of such intention.

9. STATUTES — Construction — No Presumption that Legislature Intended to Work Injustice. — It is not to be presumed that the legislature intended to work an injustice.

10. LIMITATION OF ACTIONS — Prospective or Restrospective Construction — Effect of New or Changed Provision. — A new or changed provision of a statute of limitations applies to all rights or causes of action after its passage, leaving all rights or causes of action existing at the time of such passage subject to the operation of prior limitations, unless otherwise provided. Therefore, rights accrued, claims arising, proceedings instituted, orders made under the former law, or judgments rendered before the passage of an amended statute, will not be affected by it, but will be governed by the original statute, unless a contrary intention is expressed in the later statute.

11. STATUTES — Construction — Prospective or Retrospective Construction — Section 6 of the Code of 1936 — "Right Accrued or Claim Arising." — The terms "right accrued or claim arising," as used in section 6 of the Code of 1936, providing that no new law shall be construed to repeal a former law, as to any right accrued, or claim arising under the former law, do not mean rights and interests so vested as to be beyond legislative interference but such rights and claims as might be affected by ordinary legislation.

12. WILLS — Contest — Limitation of Actions — Section 5259 of the Code of 1936 — Amendment Not Construed Retrospectively — Case at Bar. — In the instant case, a suit to contest a will, the purported writing was admitted to probate January 3, 1934, and no appeal was taken from the clerk's order of probate, nor was a bill filed to impeach the will until eighteen months and nine days after the date of the order of probate. Defendants, proponents of the will, filed a plea of the statute of limitations upon the ground that the action had not been brought within one year from the date of the order of probate, as is now required by section 5259 of the Code of 1936. The trial court sustained a motion to strike the plea of the statute of limitations, on the ground that the statute in force at the time of the order of probate allowed two years within which to institute the suit.

Held: That there was no error in striking the plea of the statute of limitations.

13. WILLS — Undue Influence — Test to Determine Existence of Undue Influence. — In a suit to contest a will, on the ground of insufficient mental capacity on the part of the testatrix and undue influence upon her, the question to be determined is whether the testatrix, at the time of the signing of the will, possessed a mind and memory sufficiently free and active to know the particulars of the business being transacted, perceived its obvious nature, extent and effect, and, with a rational judgment, approved thereof; or whether the provisions and terms of the instrument were the will of another imposed upon her when she was too weak, physically and mentally, either to initiate, resist, or approve what was being done.

14. INSANITY — Test of Mental Capacity — Weakness of Understanding, Old Age or Sickness. — Mere weakness of understanding, mere old age, or sickness, are neither of themselves sufficient to show mental incapacity.

15. WILLS — Undue Influence — Old Age and Illness as Badge of Fraud. — Extreme old age, weakness of mind, serious and disabling physically illness on the part of the testator, may be a badge of fraud, especially where such circumstances concur with circumstances of suspicion.

16. WILLS — Undue Influence — Old Age and Illness Coupled with Suspicious Circumstances. — Whether influence upon a testator of extreme age and weak mind, suffering from a serious and disabling physical illness, with concurring circumstances of suspicion, is of such a nature as to overcome the will and control of the testator, depends upon the circumstances of each case.

17. WILLS — Testamentary Capacity — Strength of Mind Must Be Sufficient to Understand and Approve Provisions of Will. — While it may not be necessary for a person to initiate the making of a will, it is necessary that the testator have sufficient strength of mind to understand, to appreciate, or to approve the terms and provisions thereof, however initiated.

18. UNDUE INFLUENCE — What Constitutes. — If the acts of one destroy the free agency of the mind, or so control and direct the mind of another without giving effect to the wishes of that other, then what is done cannot be said to be the will and desire of the person controlled.

19. WILLS — Undue Influence — Particular Act Not Attended by Consent and Will of Testator. — Although a testator may be under no legal incapacity to make a valid will, yet if the whole transaction taken together with all of the facts, mental weakness being one of them, shows that the making of the will was not attended with the consent and will of his understanding, the will is invalid.

20. WILLS — Undue Influence — Expert and Opinion Evidence — Admissibility of Non-Expert Testimony — Case at Bar. — In the instant case, a suit to contest a will on the ground of undue influence, defendants objected to the admission of non-expert testimony as to the mental capacity of the testatrix. The record disclosed that the defendants were permitted to elicit non-expert testimony from favorable witnesses, and further showed that the witnesses objected to expressly admitted that they could not speak as to the mental capacity of the testatrix, but that having known her for many years and having seen her at the time of the execution of the instrument, they believed from what they saw that she was a very sick woman and too sick to transact business. They justified this statement from their prior knowledge of the woman, whom they had known all of their lives and from the further fact that on the occasion in question, she paid no attention to either of them, nor to the conversation in the room and apparently did not know they were there.

Held: No error. The objection affected the weight of the testimony rather than its admissibility.

21. EXPERT AND OPINION EVIDENCE — Non-Expert Testimony — Testimony of Lay Witnesses of Little Value Except as to Facts. — The testimony of lay witnesses is of little value except to state facts.

22. EXPERT AND OPINION EVIDENCE — Non-Expert Testimony — Lay Witnesses May Sum up Impressions by Giving Opinion Produced Thereby. — Since lay witnesses may not always be able to convey adequate ideas of appearances, they may, after stating facts or particulars that they remember, be permitted to sum up all of their impressions, remembered and unremembered, by giving an opinion produced by such impressions.

23. EXPERT AND OPINION EVIDENCE — Non-Expert Testimony — Lay Witnesses May Sum up Impressions as to Facts and Evident Conditions. — Lay witnesses may sum up their impressions as to particular facts and as to evident conditions appearing before them.

24. EXPERT AND OPINION EVIDENCE — Non-Expert Testimony...