Grottendick v. Webber, (No. 10088)

• Decision Date: 15 March 1949
• Docket Number: (No. 10088)
• Citation: 132 W.Va. 539
• Court: West Virginia Supreme Court
• Parties: Charles Grottendick, Guardian, Etc. v. James F. Webber

132 W.Va. 539

Charles Grottendick, Guardian, Etc.

v.James F. Webber

(No. 10088)

Supreme Court of Appeals of West Virginia.

Submitted January 18, 1949.

Decided March 15, 1949.

1. Equity

In a suit in equity to impeach a will, instituted under Code, 1931, 41-5-11, an amended and supplemental bill of complaint, which incorporates by reference the allegations of an original bill of complaint attacking the instrument probated as a will on grounds of lack of testamentary capacity and undue influence and which contains a new allegation attacking such instrument on the additional ground that it was not executed in the manner required by law, does not change the cause of action set out in the original bill of complaint in such suit.

2. Courts^

Amendment of a pleading is a matter within the sound judicial discretion of a court and its exercise of such discretion is subject to appellate review.

3. COURTS

In the exercise of its discretion a trial court, after the appearance of the defendant and before the entry of final decree, should permit the plaintiff, in a suit in equity to impeach a will, instituted under Code, 1931, 41-5-11, to file an amended and supplemental bill of complaint which, though containing new matter as an additional ground of attack upon the validity of the challenged will, does not change the cause of action set forth in the original bill of complaint.

4. Trial

a plaintiff in a suit in equity to impeach a will, instituted under Code. 1931, 41-5-11, who, after the appearance of the defendant and before the entry of a final decree, asked but was refused permission to file a good and sufficient amended and supplemental bill of complaint in which he requests a trial by jury to ascertain whether the instrument probated as a will is or is not the true will of the decedent, does not waive, but properly asserts, his statutory right to require a trial by jury of that issue in such suit.

Appeal from Circuit Court, Preston County.

Suit by Charles Grottendick, guardian, etc., against James F. Webber to impeach an instrument made by Cecelia Webber, deceased, and probated as her last will, by which testatrix gave all her property to defendant. From the decree, plaintiff appeals.

Reversed and remanded.

Parrack, Snyder & Wehner, F. E. Parrack, Melvin C. Snyder, and Charles V. Wehner, for appellant.

Kermit R. Mason, and Thomas W. Lewis, for appellee.

Haymond, President:

This is a suit in equity instituted in the Circuit Court of Preston County under the provisions of Section 11, Article 5, Chapter 41 of the Code of 1931. The plaintiff, Charles Grottendick, guardian of Mary Grottendick, an infant, seeks to impeach a will made by Cecelia Webber, dated November 1, 1945, and probated by the Clerk of the County Court of Preston County November 19, 1945, by which the testatrix gave all her property to her son, the defendant, James F. Webber. Mary Grottendick is the granddaughter and the defendant is the son of the testa- trix and they are her only heirs at law. The case is here on appeal from a final decree of the circuit court entered May 25, 1948, which sustained a motion of the defendant for a decree in his favor upon the original bill of complaint of the plaintiff, the answer of the defendant, the general replication of the plaintiff and the depositions filed in behalf of the plaintiff; refused to permit the plaintiff to file an amended and supplemental bill of complaint; dismissed the bill of complaint of the plaintiff; and rendered judgment for the defendant.

The original bill of complaint, which was filed at February Rules, 1947, attacked the validity of the instrument on the alleged grounds of lack of mental capacity of the testatrix to make a will and of undue influence exerted upon her by the defendant. After the defendant had filed his answer, the plaintiff offered, by depositions, the testimony of the three attesting witnesses and a clergyman who visited the testatrix on several occasions a few days before November 1, 1945, the date of the purported will, and administered to her the last rites of his church during the illness from which she died in a hospital in Warrensburg, Missouri, in the early part of November, 1945. One of the witnesses, the clergyman, testified that, in his opinion, when he last visited the testatrix shortly before November 1, 1945, she was mentally and physically incapable of making a will. The others, who were the attesting witnesses to the instrument, expressed the opinion that she possessed sufficient mentality for that purpose at the time it was executed. None of the witnesses testified to any facts which tend to show that the defendant exercised any undue influence upon the testatrix at any time. The testimony of the attesting witnesses, however, is not positive with respect to the presence of all of them, when the testatrix executed the instrument by affixing her mark to her signature which was written for her by one of the attesting witnesses or when they subscribed their names as attesting witnesses. One of the attesting witnesses, a man, testified that he saw the testatrix make her mark and that he signed in her presence but that he could not be sure that the other two attesting witnesses were present at that time. He also said that he could not say that he saw the other two attesting witnesses sign their names. Another attesting witness, a woman, testified that she signed her name as such witness but that she did not see the testatrix affix her mark to the instrument. This witness said she saw one of the two other attesting witnesses sign his name but that she did not see the third attesting witness sign and that she did not remember whether that witness was present when she signed her name as one of the attesting witnesses. The third attesting witness, also a woman, testified that to the best of her recollection the three attesting witnesses were present when the testatrix made her mark and when each of them signed as an attesting witness.

The despositions were completed on April 8, 1948, and filed on April 14, 1948. After they were filed the plaintiff prepared an amended and supplemental bill of complaint, incorporating in it, by reference, the allegations of the original bill of complaint and a new allegation to the effect that the purported will was not executed in the manner required by law, as an additional ground of attack upon its validity. In the prayer of the amended and supplemental bill of complaint the plaintiff asked that an issue devisavit vet non be made up and tried by a jury at the bar of the court to determine whether the writing admitted to probate is or is not the true last will and testament of the testatrix, Cecelia Webber. The court on the clay the final decree was entered, and immediately before its entry, overruled the motion of the plaintiff to file the amended and supplemental bill of complaint, tendered for filing at that time, for the stated reasons that the motion to file it came too late and that the allegations of the amended and supplemental bill of complaint changed the cause of action set forth in the original bill of complaint.

The questions presented by the assignments of error are: (1) Whether the plaintiff was entitled to file the

amended and supplemental bill of complaint; and (2) whether the plaintiff was properly refused a trial by jury upon an issue devisavit vel non.

In support of the decree of the trial court the defendant contends that the amended and supplemental bill of complaint tendered by the plaintiff was offered too late for filing, that it changed the original cause of action set forth in his original bill of complaint, and that the plaintiff waived his right to require a trial by jury of the foregoing issue by his failure to demand such trial before making his motion to file his amended and supplemental bill of complaint on May 25, 1948, the date of the entry of the final decree.

The statute, upon which this suit is based, to the extent here pertinent, provides that after a judgment or an order has been entered in an ex parte proceeding for the probate of a will, "any person interested who was not a party to the proceeding, or any person who was not a party to a proceeding for probate in solemn form, may proceed by bill in equity to impeach or establish the will, on which bill, if required by any party, a trial by jury shall be ordered, to ascertain whether any, and if any, how much, of what was so offered for probate, be the will of the decedent. * * * if the judgment or order was entered by the county court and there was no appeal therefrom, such bill shall be filed within two years from the date of such order of the county court." Code, 1931, 41-5-11. It is evident that the purpose of the quoted provisions of the statute is to confer upon any person to whom they apply a right of action to impeach a will upon any valid and subsisting ground.

Under the statute relating to the amendment of pleadings and the established practice, both at law and in equity, which has long prevailed in this jurisdiction, great liberality and wide latitude are permitted with respect to the amendment of a declaration in an action at law...