Grottendick v. Webber, 10088

• Citation: 52 S.E.2d 700
• Decision Date: 15 March 1949
• Docket Number: No. 10088,10088
• Court: Supreme Court of West Virginia
• Parties: GROTTENDICK . v. WEBBER.

52 S.E.2d 700

GROTTENDICK .
v.
WEBBER.

No. 10088

Supreme Court of Appeals of West Virginia.

March 15, 1949.

[52 S.E.2d 700]

.

Syllabus by the Court.

1. 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.

[52 S.E.2d 701]

2. 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. 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. 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 Grottcndick, 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.

Decree reversed, and cause remanded.

Parrack, Snyder & Wehner, F. E. Par-rack, Melvin C. Snyder, and Charles V. Wehner, all of Kingwood, for appellant.

Kermit R. Mason, of Morgantown, and Thomas W. Lewis, of Kingwood, 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, Chap ter 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 testatrix 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

[52 S.E.2d 702]

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 depositions...