Hall v. Hall, Record No. 2635.

• Court: Supreme Court of Virginia
• Citation: 181 Va. 67
• Decision Date: 18 January 1943
• Docket Number: Record No. 2635.
• Parties: ANNIE HALL AND DOROTHY MILLER v. HARRY HALL AND OTHERS.

Page 67

181 Va. 67

ANNIE HALL AND DOROTHY MILLER v. HARRY HALL AND OTHERS.

Record No. 2635.

Supreme Court of Virginia, Richmond.

January 18, 1943.

Present, Campbell, C.J., and Hudgins, Gregory, Browning, Eggleston and Spratley, JJ.

1. WILLS — Testamentary Capacity — Weight of Testimony of Draftsman, Attesting Witnesses and Physicians. — In determining the mental capacity of a testator, great weight is to be attached to the testimony of the draftsman of the will, of the attesting witnesses, and of attending physicians.

2. WILLS — Testamentary Capacity — Sufficiency of Evidence to Establish — Case at Bar. — In the instant case, a will contest, contestants alleged that the testator, at the time of the execution of the purported will, was mentally incapable of making a will. The draftsman of the will testified that the will was drawn after two conferences with the testator, that it was dictated in the testator's presence and that the final draft was read to the testator who understood it and was "entirely satisfied" with it. A member of the draftsman's law firm, who was named as executor in the will, testified that he saw and talked with the testator on the day the will was executed and that the testator was perfectly normal and knew exactly what he was doing and what he wanted. One of the attesting witnesses testified that previous to the execution of the will he talked with the testator and that the testator talked in a normal, rational manner. The other attesting witnesses, the stenographer who typed the will, confirmed the statement that the will was dictated in the testator's presence and was later read and understood by him. Five physicians who had examined and treated the testator for a period of nearly four years prior to his death testified that while the testator was suffering from high blood pressure and hardening of the arteries this condition did not impair his mental faculties, and that he was all the while quite rational and entirely competent to make a will. Neighbors of the testator also testified that he was rational and normal and in sound mind. On an issue devisavit vel non, the jury found in favor of the will.

Held: That there was ample evidence to support the jury's finding that the testator was mentally competent to make a testamentary disposition of his property.

3. WILLS — Testamentary Capacity — Question for Jury. — The question of mental capacity on conflicting evidence is one for the jury, and where the issue has been fairly submitted on proper instructions neither the trial court nor the Supreme Court of Appeals may disturb the verdict.

4. WILLS — Contest — Instructions — Insufficient Assignment of Error — Case at Bar. — In the instant case, a will contest, one assignment of error challenged the correctness of certain instructions which were granted at the request of the proponents. While it was contended that in giving the instructions the court introduced such confusion in the minds of the jury as to nullify other instructions, neither in the briefs nor in the objections in the trial court did the contestants undertake to point out the alleged confusion.

Held: That the assignment of error was not a sufficient assignment such as is required by section 6346 of the Code of 1942 and Rule 14 of the Supreme Court of Appeals.

5. WILLS — Contest — Instructions — Failure to Point out Defects in Objections or Assignments of Error — Case at Bar. — In the instant case, a will contest, contestants objected in the lower court that certain instructions granted at the request of the proponents contained "reiterations prejudicial to complainants". These prejudicial reiterations were not pointed out in the objections below "with reasonable certainty" as is required by Rule 22 of the Supreme Court of Appeals, nor were they mentioned in the assignments of error although referred to as "obvious repetitions" in appellants' reply brief.

Held: That the Supreme Court of Appeals would not examine the instructions and seek out the "reiterations prejudicial to complainants" or the "obvious repetitions" which counsel had not pointed out.

6. WILLS — Contest — Instructions — Use of Words "Soundness of His Reasoning" — Case at Bar. — In the instant case, a will contest, contestants complained of the opening sentence of an instruction granted at the request of the proponents which told the jury "that the right of a testator to dispose of his estate as he likes depends neither on the justice of a prejudice nor on the soundness of his reasoning". It was contended that the words "soundness of his reasoning" were likely to be confused by the jury with "soundness of his reason".

Held: That when the whole sentence was read in its setting, as found in the instruction as a whole, it was not likely to confuse the jury.

7. WILLS — Testamentary Capacity — Burden of Proof. — The burden of proving testamentary capacity is on the propounder of a will and continues upon him throughout any contest on that question.

8. WILLS — Testamentary Capacity — Presumption When Due Execution Shown. — In a will contest, if all the statutory requirements for due execution be shown the legal presumption of sanity comes to the proponents' relief. A prima facie case is made out, and the burden then rests upon the contestants to produce evidence if this presumption is to be overcome.

9. WILLS — Contest — Right to Open and Close Argument. — Upon an issue devisavit vel non the proponents of the will have the affirmative of the issue and the right to open and conclude the argument.

Appeal from a decree of the Circuit Court of Arlington county. Hon. Walter T. McCarthy, judge presiding.

The opinion states the case.

Arthur C. Stickley, II, and George E. Sullivan, for the appellants.

Thomas, Strauss, Backus & May and McGroary, Quinn, Keesee & Marshall, for the appellees.

EGGLESTON, J., delivered the opinion of the court.

Annie Hall and Dorothy Miller, hereinafter referred to as the contestants, filed a bill in the court below, under Code, sec. 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 1877. 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 members 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...