Hartman v. Strickler

• Decision Date: 08 July 1886
• Citation: 82 Va. 225
• Parties: HARTMAN v. STRICKLER AND WIFE.
• Court: Virginia Supreme Court

82 Va. 225

HARTMAN v. STRICKLER AND WIFE.

Supreme Court of Appeals of Virginia.

July 8, 1886

Appeal from decree of circuit court of Roanoke county, rendered October 10, 1884, in a chancery cause wherein John N Strickler and Lucy B., his wife were complainants, and Nathaniel B. Hartman was the defendant. There was an issue of devisavit vel non in the cause to determine whether a writing which N. B. Hartman offered as the will of George Hartman, deceased, was the will of the decedent or not. The jury found that it was not. N. B. Hartman moved the circuit court to set aside the verdict and award him a new trial of the issue. The motion was overruled; and N. B. Hartman obtained an appeal to this court.

At the trial, on the motion of the defendant, the court below gave the jury four instructions, which are as follows:

1st. That every person not of unsound mind, nor a minor under eighteen years of age, nor a married woman, is entitled under the laws to make a will.

2d. That a person who has made a will is of sound mind is presumed, and the burden of proving the contrary rests on him who alleges it.

3d. That fraud and undue influence (which is a species of fraud) must not be presumed, but must be clearly and strictly proved, and the burden of proving it rests on him who alleges it.

4th. That the influence to vitiate a will must amount to force and coercion, destroying free agency. It must not be the influence of affection and attachment; it must not be the mere desire of gratifying the wishes of another, for that would be a very strong ground in support of a will. Further there must be proof that the will was obtained by this coercion, by importunity, which could not be resisted; that it was made merely for the sake of peace, so that the motive was tantamount to force and fear; and that, if from the evidence, the jury believe that George Hartman, at the time of making the will in controversy, had sufficient understanding to comprehend the nature of the business and consented freely and voluntarily to the special matter about which he was engaged, they shall find for the plaintiff upon the issue joined.

Opinion states the case.

G W. and L. C. Hansbrough, for the appellant.

It is contended that the proceedings in this case to test the validity of George Hartman's will was a proceeding at law, and that the verdict of the jury will not be disturbed, on a motion for a new trial, except for reasons upon which a verdict of the jury would be set aside on a similar motion in a common law action; and as authority for this position there is cited by the appellee's counsel the case of Lambert v Cooper, 29 Gratt. p. 66.

While it may be conceded that in such a trial as in the trial of all issues out of chancery, a point must be saved by bill of exceptions, in order to have it reviewed by an appellate court, yet it is not true that this proceeding is wholly a common law proceeding, and that to the application for a new trial of the issue of devisavit vel non, there is applicable the rule which pertains to motions for new trials in common law actions, viz: " that the testimony, instead of the facts, being certified the appellate court will, after rejecting all the parol evidence of the exceptor to the opinion of the court below refusing a new trial, consider only the evidence of the adverse party and the documentary evidence of the exceptor." On the contrary, we contend that the rule applicable to the review of decisions of the court below refusing a new trial of the verdict of a jury upon the trial of an issue out of chancery, is the rule applicable to the case of devisavit vel non. See Powell v. Manson, 22 Gratt. See Code 1873, ch. 118, sec. 34, p. 915, where it is said that, where a will has been admitted to probate, a person interested may, within five years, proceed by bill in equity to impeach or establish a will, in which event a jury shall be ordered to ascertain whether any, and if any, how much of what was so offered for probate is the will of the decedent.

There is nothing in this statute to make such a proceeding, a common law proceeding, any more than there is to make the trial of an issue out of chancery a common law proceeding--for that, too, is allowed by statute. See Code 1873, ch. 173, secs. 4 and 5, p. 1118.

Even in Lambert v. Cooper, this court considered the issue presented to it as to whether or not the verdict of the jury should be set aside, in reference to all of the exceptor's parol evidence, which was not in conflict with that of the adverse party, and also in reference to all the evidence on both sides. See 29 Gratt. p. 67; see Syllabus, Webb v. Dye, 18 W.Va. 391, and Nease v. Capehart, 15 W.Va. 299.

The idea that a motion for a new trial of an issue of devisavit vel non is to be decided upon the plan and grounds on which a motion for a new trial of a verdict in a common law action is decided, arose out of the idea that the court, entertaining a bill to set aside the probate of a will, is a mere probate court, a law court. Malone v. Hobbs, 1 Rob. R. 409-10-11.

But the decision of this court in Connolly v. Connolly, 32 Gratt. 657, explodes that idea, and establishes the fact that such court is a court of equity (as the statute calls it), and that the proceeding is " an equitable one." And, therefore, this proceeding here is " an equitable proceeding."

Appellee's brief denominates this cause " a chancery cause. " The bill asks for more than a jury. It prays for an injunction.

The motion for a new trial of the issue of devisavit vel non should be governed by the rules which govern the application for a new trial of a verdict upon an ordinary issue out of chancery, viz: " all the testimony on both sides should be considered." Such a plan is consonant with the principles of equity practice, and conduces to the attainment of the ends of justice, whilst the other plan is technical, arbitrary and well calculated to shut out the truth, and to defeat the administration of justice.

All the testimony on both sides being considered, there can be no particle of doubt as to the fact that the instrument which was admitted to probate in the county court of Roanoke county as the last will and testament of Geo. Hartman, deceased, was his intelligent and voluntary act, and duly executed in accordance with all the formalities prescribed by law. The same is the result where even the testimony of appellant is rejected which is in conflict with that of appellee.

But even if only the evidence of the appellee be considered, where is the proof of undue influence sufficient to vitiate this will? What is undue influence sufficient to vitiate a will? See Parramore v. Taylor, 11 Gratt. pages 234 to 239, inclusive.

" The influence to vitiate an act must amount to force and coercion, destroying free agency; it must not be the influence of affection and attachment; it must not be the mere desire of gratifying the wishes of another, for that would be a very strong ground in support of a testamentary act; further, there must be proof that the act was obtained by this coercion ; by importunity that could not be resisted, that it was done merely for sake of peace, so that the motive was tantamount to force and fear." 11 Gratt., p. 239. See extract from Carr, J., in Boyd v. Cook, 3 Leigh, on page 54.

" The requisitions of the statute must be satisfied, or the will is not valid, but beyond this, the court seldom looks, unless there be fraud. That will vitiate a will however strict the compliance with the statute; but that must be proved, and in the absence of proof, the court will not imagine that any fraud may possibly have been practised, and act upon that imagination. Such a course would convert the law, which was meant to be a shield, into a sword, and destroy twenty good and fair wills for one that was fraudulent. Nor ought courts, in their decisions on wills, to be at all influenced by the reflection, that the law has made a just distribution for such as die intestate; that law was never meant to interfere with the right of every man to dispose, at his will and pleasure, of the property which it had been the labor of a life to acquire, a right dear to him, and held sacred wherever civilization has made progress, or law bears the semblance of science."

In Parramore v. Taylor, supra, the facts are:

(1) Testator had two children, son and daughter.

(2) He made a very unequal distribution of his estate, giving son much the most.

(3) No reason given except his volition.

(4) Son and family lived with testator.

(5) Son was not present when will was written, having been sent out of room.

(6) Scrivener read will to testator.

(7) Will was (when executed) placed in son's hands.

(8) Son showed it to a lawyer, and when advised that residuary clause was not plain, son devised a codicil, making him sole executor, and proposed it to testator, who executed said codicil. Son's connection with codicil was the strongest circumstance against the propriety of son's conduct.

(9) Son told Scrivener: " Father wants you to put in a clause to compel sister to convey her third in ‘ Poplar Grove.’ " When that clause was read, testator objected to it; but afterwards determined to let it remain.

This court held that there was no undue influence in that case.

The facts of case at bar are similar, except that there is absolutely nothing in the record to show that appellant had the slightest thing to do in influencing the testator in making his will. Courts admire the rule of equality in the distribution of a parent's estate, but the volition of the testator to violate this rule and make an unequal distribution, is an allsufficient reason with the courts. The violation of this rule, without apparent good cause, may put them...