Hall v. Hall

• Decision Date: 18 January 1943
• Parties: HALL et al. v. HALL et al.
• Court: Virginia Supreme Court

23 S.E.2d 810

HALL et al.

v.HALL et al.

Supreme Court of Appeals of Virginia.

Jan. 18, 1943.

Rehearing Denied March 12, 1943.

Appeal from Circuit Court, Arlington County; Walter T. McCarthy, Judge.

Bill by Annie Hall and another against Harry Hall and others to impeach an in-strument previously admitted to probate ex parte as the last will and testament of Percy Hall, deceased. From a decree sustaining verdict and establishing instrument as the true last will and testament of deceased, contestants appeal. Decree affirmed.

Before CAMPBELL, C. J, and HUDGINS, GREGORY, BROWNING, EGGLESTON, and SPRATLEY, JJ.

Arthur C. Stickley, II, of Arlington, and George E. Sullivan, of Washington, D. C, for appellants.

Thomas, Strauss, Backus & May, of Alexandria, and McGroary, Quinn, Keesee & Marshall, of Washington, D. C, for appellees.

EGGLESTON, Justice.

Annie Hall and Dorothy Miller, hereinafter referred to as the contestants, filed a bill in the court below, under Code, § 5259, as amended by Acts 1934, ch. 339, p. 523, against Harry Hall and others, hereinafter called the proponents, to impeach a paper writing, dated July 1, 1939, which had been probated ex parte before the clerk of the court below on August 9, 1940, as the last will and testament of Percy Hall, deceased. The bill alleged that at the time of the execution of the paper writing the purported testator was mentally incapable of making a will. It alleged that another paper writing, dated September 14, 1925, and executed by Percy Hall, in the proper manner, was his true last will and testament. After proper pleadings had been filed, pursuant to the prayer of the bill a jury trial on an issue devisavit vel non was ordered. The following issue was submitted to the jury: 'Whether or not a certain paper writing dated July 1, 1939, or a certain paper writing dated September 14, 1925, either or both, or any part of either or both, constitutes the last will and testament of Percy Hall, deceased." The jury's verdict was in favor of the instrument dated July 1, 1939. From a decree sustaining the verdict and establishing that instrument as the true last will and testament of the deceased the contestants have appealed.

Rule 14 of this court provides that, "The opening brief of the appellant (or the petition for appeal when adopted as the opening brief) shall contain", among other things:

"(c) A clear and concise statement of the facts, with references to the pages of the record where there is any possibility that the other side may question the statement. Where the facts are controverted it should be so stated."

A compliance with this plain and simple requirement is of immeasurable help to the court in ascertaining and deciding the questions presented to it. A failure to comply with the rule, especially where the record is lengthy, places on the court an unnecessary burden of which it could and should be relieved by counsel who are familiar with the record.

In the case before us the record contains more than 300 printed pages, including the testimony of thirty-six witnesses during a trial which consumed more than four days. And yet the petition for appeal, which is adopted as the opening brief, does not contain the required "clear and concise statement of the facts, " pointing out those which are "controverted" and those upon which the parties agree. While there is a purported "Statement of Facts, " in substance this is little more than a recital of facts and circumstances which, despite the adverse verdict of the jury, are most favorable to the appellants.

We take this occasion to remind the profession that this rule serves a real and salutary purpose, and that a failure to comply with it may result in a denial or dismissal of the appeal or writ of error.

The principal assignment of error is that the verdict is contrary to the law and the evidence and is without evidence to support it.

The evidence discloses that Percy Hall was born in England in 1877 and came to this country about 1897. He engaged in business with his brother, Harry Hall, in Washington, D. C, and through the exercise of sound judgment and unusual business acumen amassed a comfortable estate.

In 1923 Dorothy Hall and Annie Hall, two of the testator's sisters who had been living in England, came to this country and from that time until June, 1939, made their home with him. The testator was unmarried and had then retired from business. For a time they lived in Washington but later moved to Arlington county where they resided until the testator died on July 24, 1940, at the age of sixty-three years. Although the sisters were regularly employed while they lived with their brother, they did the housekeeping and marketing for the family. Apparently the three mem-bers of the family were devoted to each other and were happy in their home until 1939. In 1925 Percy wrote a will in which he left all of his property to them. He was particularly devoted to Dorothy. While she was in fact his daughter, she had been raised in the family and was generally known as his sister, and we shall refer to her as such.

In 1935 the brother and the two sisters went to England where they stayed several months with or near their relatives. Shortly after their return from England the health of Percy, who was then approximately fifty-eight years old, began to fail. He began to lose weight and complained of severe headaches, and while he had always been a person of strong and independent will, inclined to be intolerant of opposing views, and hot-tempered, he became more nervous and irritable. In the spring of 1936 his trouble was diagnosed as arteriosclerosis with the usual accompaniment of high blood pressure. From that time until his death he was almost constantly under the care of one or more physicians who were in one accord that his trouble was hardening of the arteries and elevation of blood pressure. In the fall of 1935 or the early part of 1936 (the record does not show just when), he suffered a slight stroke which somewhat impaired the use of his left hand.

In the spring of 1939 Cornelius Miller, a widower who lived in the neighborhood, became attentive to Dorothy, and they were married on June 24, 1939, while Percy was in a local hospital. Although Miller had theretofore been a friend of the family and was welcome in the Hall home, upon the commencement of his attentions to Dorothy, Percy took a violent dislike to him. Due to his attitude Dorothy did not tell Percy of her approaching marriage.

When Percy returned from the hospital and was informed of the marriage, which had taken place on the previous day, he was greatly upset, and became very angry not only with Dorothy but also with Annie, who was sympathetic with the marriage. As evidence of Percy's anger and rage he applied obscene and vulgar epithets to his sisters and told various neighbors and intimate associates that he was going to change his will and disinherit both of them. Within a week of the marriage he ordered Annie to leave the home. This she did, first taking refuge at the home of a neighbor and later making her home with Doro thy (Mrs. Miller) and her husband. In the meantime, Harry, an elder brother, had become a member of the household and continued there after the two sisters had left.

Shortly before Dorothy's marriage Percy sought the advice of an attorney in Washington with reference to changing his will. After the marriage this purpose became fixed in his mind, and within a week the will was drawn, executed and properly witnessed in the attorney's office on July 1, 1939. In this will, which is the subject of the present controversy, Percy bequeathed to each of the sisters, Dorothy and Annie, the sum of one dollar. His remaining property he devised and bequeathed to his surviving brothers and to his other sister, Mrs. Duxbury, who, along with the executor, are the proponents of the will and the appellees here.

For some weeks after the will had been executed Percy's anger and resentment toward his sisters, Dorothy and Annie, was unabated. During this time he spoke freely of his troubles to his neighbors and associates. He openly declared that he had rewritten his will and had disinherited the two sisters.

About three or four weeks after Annie had left her brother's home he sent for her and asked that she return and keep house for him and their brother, Harry. She took this offer under consideration but later declined it because, as she testified, it would have been impossible for her to have cared for her ailing brother and to have continued with her employment.

In the meantime Percy's anger toward Dorothy had likewise apparently abated. She and her husband lived in the neighborhood and pursuant to a telephone message she went to see her brother. From this time on until his death, and despite his former mistreatment of her, she visited him daily and ministered to his needs. Seemingly his affection for her returned and on each occasion when she left he kissed her goodbye.

In July, 1940, Percy's condition became so serious that he was taken to a hospital where he died on the 24th of that month. An autopsy showed that his death was due to the bursting of an internal artery. It also showed that he was suffering from an incipient cancer of the stomach, which, however, did not contribute to his death.

So much for the uncontroverted facts. We come next to the subject of the testa-tor's mental capacity which is the crux of the case and as to which the evidence is conflicting.

Brewster H. Marshall, a member of the District of Columbia Bar, and an Assistant United States Attorney, was the draftsman of the will. He testified that the will was drawn after two conferences with the testator. The first of these took place early in June, 1939, and before Dorothy's marriage. At that time the testator told him that he was thinking of changing his will in view of his sister's contemplated marriage. The second conference took place at Mr. Marshall's office after the...