Freeman v. Freeman
| Decision Date | 19 November 1912 |
| Citation | 76 S.E. 657,71 W.Va. 303 |
| Parties | FREEMAN v. FREEMAN et al. [d1] |
| Court | West Virginia Supreme Court |
Submitted June 9, 1911.
Syllabus by the Court.
It is not necessary that subscribing witnesses should know the contents of the will, or that the testator should tell them that the paper is his will. If they are called to witness his signature to a paper, and do so in his presence and in the presence of each other, after reading the attestation clause appended thereto, which states that it is the will of the party whose signature they are called upon to witness, it is a sufficient attestation; and proof of these facts establishes the due execution of the will.
The law requires a will, not wholly in the handwriting of the testator, to be subscribed by two witnesses; but the rules of evidence do not require its due execution to be proven by the two subscribing witnesses, although their testimony is generally the best evidence of the fact.
If a husband or wife is incompetent, by virtue of section 23, c 130, Code 1906, to testify to personal transactions or communications had between the witness and a decedent, the other consort is also incompetent.
The husband of an heir who is contesting the will is incompetent to testify to the mental incapacity of testator.
The words "personal transactions or communications," within the meaning of section 23, c. 130, Code, include every method whereby one person may derive impressions or information from the conduct, condition, or language of another.
A nonexpert witness is competent to give his opinion in regard to the mental capacity or incapacity of a testator, based upon facts obtained by personal contact with him and observations of his conduct and manner.
The jury must determine the value of such opinion from the opportunity which the witness is shown to have had to know the testator and to observe his conduct.
It is not necessary that a testator should know every item of his property or the value of his estate, to render him competent to dispose of it. It is sufficient if he knows of what it consists, and knows the persons to whom he desires to give it.
Fraud will not be inferred from facts and circumstances which are consistent with fair dealing. To establish fraud there must be positive proof of it, either direct or circumstantial.
It is not reversible error for the trial court to give a written instruction to the jury, at their request, which correctly propounds the law, after the case has been submitted to them and they have deliberated on it for a time.
Error to Circuit Court, Mercer County.
Action by Lizzie Freeman against Ernest W. Freeman and others. Judgment for plaintiff, and defendants bring error. Affirmed.
Williams & Williams and D. E. French, all of Bluefield, and William E Chilton, of Charleston, for plaintiffs in error.
Hale & Pendleton and John M. McGrath, all of Princeton, and Sanders & Crockett, of Bluefield, for defendant in error.
R. E Freeman died in June, 1905, leaving a will by which he disposed of the whole of his large estate to two brothers, C. W. and W. G. Freeman, and to a cousin, E. W. Freeman. He had no children; but he left a widow, two sisters, a number of sisters of the half blood, and children of a deceased brother, also of the half blood, who are contesting his will. This suit was originally brought by the widow, Lizzie Freeman, for whom testator made no provision whatever in his will. The court below denied her right to contest the will; and, from the order of the circuit court of Mercer county dismissing her appeal from the order of probate made in the county court, she appealed to this court. That appeal resulted in a reversal of the lower court; this court holding that, there being no provision made for her in the will, and therefore nothing for her to renounce, under the statute, she could contest the will. The cause was remanded. The opinion in that case is reported in volume 61 W.Va. at page 82, 57 S.E. 292, 11 Ann.Cas. 1013. After the cause was remanded, a compromise agreement was made between the widow and the proponents of the will, whereby she was paid $150,000 in consideration of her distributive share in her husband's estate; and she ceased to prosecute her suit further.
Thereupon the heirs at law of R. E. Freeman were made plaintiffs, and were permitted to proceed with the contest. Upon an issue of devisavit vel non a verdict was rendered, holding the will which had been probated in the county court to be the true last will and testament of R. E. Freeman. The contestants moved the court to set the verdict aside, and the court took the motion under consideration until the next term, and on the 28th of August, 1909, overruled the motion, and entered judgment of probate. From that judgment, contestants have obtained this writ of error.
During the trial a number of exceptions were taken to the rulings of the court, refusing to admit certain testimony of contestants' witnesses, and admitting, over their objection, certain testimony of proponents' witnesses. Many witnesses were examined pro and con, and the testimony is voluminous. It relates chiefly to the question of testator's mental capacity to make a will, and to the question whether or not it was procured to be made by undue influence.
The first point made is that the evidence does not prove the will to have been duly executed. We think the evidence is sufficient on this point. The two subscribing witnesses, R. B. Smith and E. H. Witten, both testified for the proponents. Smith says: "He [meaning testator] asked me to witness his signature to his will." Witten does not say that he was asked to witness his will, but says he was asked by R. E. Freeman to witness his signature, and that he did so; that he did not read the will, but did read the attestation clause, which is in the usual form and recites all the facts necessary to show the signing and witnessing of the will in the manner required by law. The reading of the attestation clause informed him that he was witnessing a will. It is not necessary that the subscribing witnesses to a will should know its contents. It was only necessary for the attesting witnesses in this case to know that they were witnessing the signature of R. E. Freeman to his will; and their testimony proves that they knew that. Their testimony also proves that they and the testator were all three together when he signed it, and they witnessed it. It therefore appears that all legal requirements were fully complied with, so far as the formal execution of the will is concerned. The law requires a will, not wholly written by the testator, to be attested by two subscribing witnesses; but there is no rule of evidence requiring it to be proven by the two attesting witnesses. In Webb v. Dye, 18 W.Va. 376 (Syl., pt. 4), it was held: "A will must be subscribed, but need not be proven by two attesting witnesses." To the same effect, also, is the holding in Jesse v. Parker, Adm'r, 6 Grat. (Va.) 57, 52 Am.Dec. 102.
In Savage v. Bowen, 103 Va. 540, 49 S.E. 668, the court says:
The court rejected the testimony of C. H. F. Scott and S. A. Toy, husbands, respectively, of Barbara Scott and Caroline Toy, two of the contestants. They were offered as nonexpert witnesses to prove the mental incapacity of the testator, and were shown to have knowledge of sufficient facts and circumstances to entitle them to give their opinions as to the sanity, or mental capacity, of testator, if they had been otherwise competent. It was also shown that if they had been permitted to testify they would have stated that, in their opinions, he was not, at the date of the execution of the will, mentally capable of making a will.
Counsel insist that, although the wife is excluded from testifying because of her being a party to the suit, or interested in the result of it, the husband may, nevertheless, testify in respect to the matters concerning which the law forbids her to speak; and they cite the following cases to sustain the contention: Hudkins v. Crim, 64 W.Va 225, 61 S.E. 166; Weese v. Yokum, 62 W.Va. 550, 59 S.E. 514; Hollen v. Crim, 62 W.Va. 451, 59 S.E. 172; and Sayre v. Woodyard, 66 W.Va. 288, 60 S.E. 320, 28 L.R.A. (N. S.) 388. But we do not so interpret sections 22 and 23 of chapter 130 of the Code of 1906. Only one of the above cases, in any measure, supports the contention of counsel. It does appear that in Hudkins v. Crim the court held that a husband may testify in respect to a matter as to which the wife could not have testified, because of her interest in the result of the suit. The right of the husband to testify was based upon his having no interest in the wife's property there involved, and which would have been saved to her in the event Hudkins had prevailed in his contention. The effect of the marital relation and the importance to be given to it in construing the statute seems not to have been called to the attention of the court, and it is not discussed in the opinion. The fact that Hudkins had been allowed to testify was not a turning point in that case, as the court held his testimony to be of little importance. If the court's attention had been called to the case of Kilgore's Adm'r v. Hanley, 27 W.Va. 451, that case...
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