Gilmer v. Brown
| Decision Date | 03 September 1947 |
| Citation | 186 Va. 630 |
| Parties | ROSA BELLE GILMER v. JOHN A. BROWN AND OTHERS. |
| Court | Virginia Supreme Court |
Present, Holt, C.J., and Hudgins, Gregory, Eggleston, Spratley and Buchanan, JJ., Present, All the Justices.
1. ESTOPPEL — Estoppel by Record — Same Significance as Res Judicata. — Judicial estoppel and res judicata are frequently used interchangeably and have the same significance.
2. ESTOPPEL — Must Be Certain. — Estoppel, because it concludes a party from alleging the truth, must be certain to every intent and its scope should not be extended by argument or inference.
3. ESTOPPEL — Estoppel by Record — Identical Question Must Have Been in Issue. — It is essential to an estoppel by record that the identical question upon which it is invoked was in issue in the former proceeding.
4. ESTOPPEL — Inconsistent Positions — In Suit or Series of Suits. — A party may not assume successive positions in the course of a suit, or series of suits, with reference to the same fact or state of facts, which are inconsistent with each other, or mutually contradictory.
5. WILLS — Testamentary Capacity — Person under Guardianship. — In the absence of a controlling statute, the mere fact that one is under a guardianship does not deprive him of the power to make a will.
6. WILLS — Testamentary Capacity — To Be Ascertained as of Date Will Executed. — Mental capacity to make a will must be ascertained as of the date the instrument attacked was executed.
7. WILLS — Testamentary Capacity — Persons of Weak or Unsound Mind — Degree of Capacity Required. — Neither sickness nor impaired intellect is sufficient, standing alone, to render a will invalid. If at the time of its execution the testatrix was capable of recollecting her property, the natural objects of her bounty and their claims upon her, knew the business about which she was engaged and how she wished to dispose of her property, that is sufficient.
8. INSANITY — Statutes Recognize Distinction between Insane and Mentally Incapacitated. — Sections 1017 et seq. of the Code of 1942 (Michie) reveal the legislative intent to recognize a distinction between, and to make different provisions for, the insane and the mentally or physically incapacitated.
9. INSANITY — Primary Objects of Statutes Dealing with Insane and Mentally Incapacitated. — The primary object of the pertinent statutes dealing with the insane is the care and custody of the person so afflicted. The primary object of the statutes dealing with mentally or physically incapacitated persons is the management of the property for their benefit.
10. INSANITY — Committee — Purpose of Code Section 1080a. — Section 1080a of the Code of 1942 (Michie), relating to the appointment of a guardian or committee for a person incapable of taking care of his person or property, was designed to safeguard the property of such persons from dissipation by their own improvidence and to preserve it for their own support and maintenance and, incidentally, for the benefit of the heirs or legatees and devisees.
11. WILLS — Testamentary Capacity — Persons of Weak or Unsound Mind — Depends upon Degree of Mental Impairment. — The testamentary capacity of persons whose mental powers have been weakened by disease, old age or otherwise is not necessarily destroyed, but such capacity depends upon the degree of mental impairment.
12. WILLS — Testamentary Capacity — Persons of Weak or Unsound Mind — Formula by Which Tested. — The testamentary capacity of persons whose mental powers have been weakened by disease, old age or otherwise is tested by the same formula as in cases of insanity.
13. WILLS — Testamentary Capacity — Not Decided in Proceeding for Appointment of Committee for Testatrix's Property — Case at Bar. — In the instant case, a will contest, the will, in which appellant was named as sole beneficiary, was executed by testatrix on the same date that committees were named to manage her property, and the trial court held that the filing of the petition and participation in the proceeding for the appointment of a committee estopped appellant from asserting in the instant case that testatrix possessed testamentary capacity on the date the order appointing committees was signed and the will was executed.
Held: That the trial court was in error in holding that the issues in the two proceedings were the same and that appellant was estopped from asserting that testatrix had testamentary capacity.
14. WILLS — Testamentary Capacity — Evidence — Record of Proceeding for Appointment of Committee. — The record of a proceeding for the appointment of a committee under section 1080a of the Code of 1942 (Michie) is pertinent evidence to be weighed with other evidence in determining the testamentary capacity of the person for whom such committee was appointed.
15. WILLS — Testamentary Capacity — Evidence — Record of Proceeding for Appointment of Committee. — The appointment of a guardian or a committee under section 1080a of the Code of 1942 (Michie) should not be regarded as prima facie evidence of mental incapacity, but the order of such appointment should be admitted as pertinent evidence to be given such weight as the jury may determine.
16. REFERENCE AND COMMISSIONERS — Review of Report — Duty to Weigh Evidence. — Notwithstanding the weight due a commissioner's report and the respect which is accorded his findings, neither the trial court nor the Supreme Court of Appeals should avoid the duty of weighing the evidence when its sufficiency is fairly challenged.
17. ATTORNEY AND CLIENT — Prejudice of Litigant's Fundamental Rights by Counsel's Improper Conduct. — The fundamental rights of a litigant should not be prejudiced by the improper conduct of counsel.
18. WILLS — Testamentary Capacity — Circumstances Surrounding Testatrix and Her Mental Condition Vital Factors. — The circumstances surrounding the testatrix and her mental condition at the time the will was executed are vital factors in determining testamentary capacity.
19. WILLS — Testamentary Capacity — Will Itself as Evidence — Case at Bar. — In the instant case, a will contest, the will, in which appellant was named as sole beneficiary, was executed by testatrix on the same date that committees were named to manage her property. Appellant was the only one of testatrix's relative who regularly and consistently spent her time and money giving aid and comfort to the testatrix during her declining years. The other relatives made perfunctory visits once or twice a year until a few months before her death.
Held: That the will itself reflected the normal reactions of a normal person and should be considered as evidence tending to establish testamentary capacity.
20. WILLS — Testamentary Capacity — Testimony of Subscribing Witnesses and Others Present. — The testimony of subscribing witnesses and others present at the factum is entitled to peculiar weight and, unless overcome by other persuasive evidence, settles the issue in favor of testamentary capacity.
21. WILLS — Testamentary Capacity — Testatrix for Whom Committes Have Been Appointed — Sufficiency of Evidence to Show Testamentary Capacity — Case at Bar. — In the instant case, a will contest, the will, in which appellant was named as sole beneficiary, was executed by testatrix on the same date that committees were named to manage her property. The attorney who drew the will, the appellant and a subscribing witness testified that testatrix instigated the preparation of the will, that its contents were discussed in detail, that she stated the reason for wanting to dispose of her property as she did and expressed her entire approval of the contents of the will. The second subscribing witness testified that after some discussion with her he was satisfied as to testatrix's competency. The only testimony that the testatrix lacked testamentary capacity was that of the family physician whose opinion was that testatrix was insane, with no lucid intervals, and had been in this condition for more than a year prior to the execution of the will. Another physician testified that he examined testatrix shortly after the execution of the will and that she was mentally sound. Another witness testified that she frequently visited testatrix and regarded her as eccentric but mentally sound.
Held: That the irresistible conclusion from the evidence was that testatrix, by reason of advanced age and infirmities, had reached the stage of mental deterioration that it was expedient to appoint a committee to manage her property but that she had not reached the stage of mental deterioration which would deprive her of testamentary capacity.
Appeal from a decree of the Circuit Court of Albemarle county. Hon. Lemuel F. Smith, judge presiding.
The opinion states the case.
Homer Richey and William Eskridge Duke, for the appellant.
Charles H. Houston, Bernard P. Chamberlain, Edward W. Scott and R. Watson Sadler, for the appellees.
This case involves the validity of a will.
Mary Thomas, whose age was estimated to be anywhere from 60 to 80 years, was one of seven or eight children of Albert Brown and wife, respectable Negroes, who owned and lived on a small tract of land near Shadwell about six miles east of Charlottesville, Virginia. All of these children except Rosa Belle Gilmer, who lived and worked in Charlottesville, at or before maturity left their parental home and went to Washington or West Virginia. Mary was a steady worker and frugal. While working in Washington she saved nearly $10,000. In 1927, she returned to her parental home and lived there with her father until he died in 1937. She continued to live on the tract of land inherited by her and her brothers and sisters from their parents until late in 1939. During this time she lived alone except for short periods when Martha Gilmer or Henrietta Brown stayed with her. Rosa Belle Gilmer drove from Charlottesville to Mary's...
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