Hentz v. Wallace's Adm'R

Citation153 Va. 437
Case DateNovember 14, 1929
CourtSupreme Court of Virginia

Page 437

153 Va. 437
ANNA L. HENTZ, ET ALS.
v.
VICTORIA B. STEVENS WALLACE'S ADM'R, ET ALS.
Supreme Court of Virginia, Richmond.
November 14, 1929.

Absent, Chichester, J.

1. TESTAMENTARY CAPACITY — Testatrix Held to have Sufficient Testamentary Capacity — Case at Bar. — In the instant case the question at issue was a testatrix's capacity at the time of the execution of a codicil to her will, August 1886. Evidence for the contestants did not show the testatrix was unbalanced when the codicil of 1886 was written. Nothing tended to show the slightest abnormality except her strange conduct and indifference at the death of her mother and the fact that she at times seemed to be dispirited and dejected, coupled with the further fact that she was intimate with no one and was reserved in manner. Evidence for the proponents showed that there was no suggestion of an unbalanced mind until 1888 and that it was not until that time that neighbors took note of anything unusual. One witness said that then at times she seemed to be wool-gathering. She was a woman of wealth and it appeared that she conducted her finances intelligently up to that time.

Held: That from the evidence at the time of the execution of the codicil the testatrix was capable of making a will.

2. TESTAMENTARY CAPACITY — Questions of Law and Fact — Evidence Held Insufficient to Submit Question of Testatrix's Capacity to a Jury — Case at Bar. — In the instant case the question at issue was the capacity of the testatrix at the time of her execution of a codicil to her will, in August, 1886. A careful examination of all the evidence disclosed no fact which would have justified the trial court in submitting the question of her sanity in August, 1886, to a jury. Had that been done and had the jury seen fit to hold with the contestants, it would have amounted to a permit to them to write a new will. Any verdict setting aside the will should in turn have been set aside by the trial court, and so there was no error in withdrawing from the jury in limine all evidence for the contestants, which is what was done.

3. WILLS — Contest — Witnesses — Judge of the Trial Court — Case at Bar. — In the instant case, a contest of a will on the ground of want of testamentary capacity, it was assigned as error that the lower court erred in refusing to grant the motion of contestants that the judge of the lower court recognize the summons served upon him and testify as a witness at the trial of the cause and presided at the trial. It appeared that the husband of the testatrix had filed with the judge, then a commissioner in chancery, petition to perpetuate the testimony of witnesses adduced in respect to the sanity of his wife. Certain requirements of the statute in the taking of this testimony were not observed and this attempt to perpetuate testimony failed.

Held: That the facts if proven could not have changed the result and there was no error in the action of the lower court.

4. JURY — Competency — Where no Other Verdict Could have been Returned by a Jury — Case at Bar. — In the instant case it was said that the court erred in accepting eight veniremen named in the exception. The reasons relied upon to establish their incompetency were not serious. Their integrity was not questioned and no jury could have properly returned any verdict differing from that given after contestants' evidence had been properly withdrawn from their consideration.

5. WILLS — Contest — Testamentary Capacity — Hearsay Evidence. — The instant case was a contest of a will on the ground of lack of testamentary capacity. A witness was asked to testify as to a conversation with husband of testatrix but was not permitted to answer.

Held: That the evidence was properly excluded as hearsay.

6. TESTAMENTARY CAPACITY — Evidence — Treatment and Opinion of Family of Testatrix. — It is competent to prove the treatment of the testatrix by the family, but not their opinions of her mental condition.

7. TESTAMENTARY CAPACITY — Evidence — Hearsay Evidence — Opinion of Neighbors. — Hazardous in the extreme would it be to the righrs of parties under the law, if they were allowed to depend upon the opinion of a neighborhood of the sanity of individuals. Hearsay evidence is excluded because a witness ought to be subjected to cross-examination, that being a test of truth. It ought to appear what were his powers of perception, his opportunities of observation, his attentiveness in observing, the strength of his recollection and his disposition to speak the truth.

8. TESTAMENTARY CAPACITY — Evidence — time to which the Evidence Should Relate — Case at Bar. — In the instant case the testamentary capacity of a testatrix in August, 1886, was attacked. During 1888 testatrix had manifested evidence of mental deterioration.

Held: That evidence to the effect that testatrix's husband before 1889 had consulted alienists about his wife's condition was inadmissible.

9. TESTAMENTARY CAPACITY — Insanity — Presumption. — Insanity when once established is presumed to have continued, but there is no presumption of such status at a period antedating that on which it is established.

10. ORDER OF PROOF — Discretion of Court. — The order of introduction of testimony is a matter resting in the sound judicial discretion of the court.

11. EVIDENCE — Striking out Evidence — Striking out all Evidence for a Party — Case at Bar. — In the instant case a contest of a will on the ground of testatrix's want of testamentary capacity, it was asserted that the court erred in striking out all the evidence for the contestants.

Held: As that evidence was not sufficient to support a verdict for contestants there was no error in the action of the court.

Appeal from a decree of the Corporation Court of the city of Fredericksburg. Decree for respondents. Complainants appeal.

The opinion states the case.

C. O'Conor Goolrick, McGuire, Riely & Eggleston and Marion A. Wright, for the appellants.

(No appearance for the appellees.)

PER CURIAM.


The issue here is one of devisavit vel non. Mrs. Victoria B. Stevens Wallace died on December 14, 1927, testate, and her will is now before us on petition for appeal, and has been attacked upon the ground of mental incapacity.

Mrs. Wallace, nee Stevens, was the child of a second marriage. Her father died when she was quite young and her mother when she was sixteen years old. She married Judge A. W. Wallace, of Fredericksburg, in April, 1883. Her will, which was a formal document, was executed April 29, 1886, and duly witnessed. Afterwards, on May 29, 1886, the testatrix added this codicil:

"Codicil to my Will.

Page 440

"As a codicil to my will I desire to modify the remainder as to 3258 Chestnut street, Philadelphia, left to the Diocesan Missionary Society of Virginia, so as to direct the trustee, C. W. Wallace, to pay the net income of the property mentioned as left to said society, to the Bishop of the Episcopal Church of the Diocese of Virginia, relying on his integrity that the Diocesan Mission shall have the benefit of said income.

"VICTORIA B. STEVENS WALLACE."

In June, 1886, she went with her husband to Europe, and while there, when in York, England, on August 31, 1886, wrote in pencil on a sheet of tourist paper the codicil on which this case turns. It is:

"I make this codicil to my will on this 31st day of August, 1886; and directing by this paper that should my husband, A. Wellington Wallace, die before me, the rest and residue of my estate of which I may die seized shall be divided into two parts, one part to go to the devisees of my said husband or his heirs at law; and the other half to be divided into two parts; one to go to Mrs. Robert G. Newbold and her issue, and the other part to go to the devisees or heirs of my said husband. Dated York, England.

"(Signed) VICTORIA B. S. WALLACE.

"I changed the word `directed' to `directing' in the 4th line.

"(Signed) V. B. S. W.

"In case the foregoing codicil goes into effect I appoint the Girard Life Insurance Annuity and Trust Company Executor of my will.

"(Signed) VICTORIA B. S. WALLACE."

This, contestants say, in invalid because of want of testamentary capacity. On May 12, 1890, on motion of her husband, she was adjudged insane and he was

Page 441

appointed her committee. This insanity, then determined, continued uninterruptedly until her death in December, 1927. Judge Wallace died in October, 1927.

As a young girl she attended a...

To continue reading

Request your trial
19 practice notes
  • Rawle v. Mcilhenny
    • United States
    • Virginia Supreme Court of Virginia
    • 15 Noviembre 1934
    ...the defendant moved to strike out the plaintiff's evidence. The motion was sustained and the judgment affirmed. Hentz Wallace's Adm'r, 153 Va. 437, 150 S.E. 389, was a bill in chancery to have an ex parte probate of a will set aside, upon an issue of devisavit vel non. At the conclusion of ......
  • Rawle v. Mcllhenny
    • United States
    • 15 Noviembre 1934
    ...the defendant moved to strike out the plaintiff's evidence. The motion was sustained, and the judgment affirmed. Hentz v. Wallace's Adm'r, 153 Va. 437, 150 S. E. 389, was a bill in chancery to have an ex parte probate of a will set aside, upon an issue of devisavit vel non. At the conclusio......
  • Bumgardner v. Corey, No. 9316.
    • United States
    • Supreme Court of West Virginia
    • 26 Mayo 1942
    ...continued, but there is no presumption of such status at a period antedating that on which it is established." Hentz v. Wallace's Adm'r, 153 Va. 437, 150 S.E. 389. See, also, Shores-Mueller Co. v. Palmer, 141 Ark. 64, 216 S.W. 295; Nichols v. Pool, 47 N.C. 23; Rowan v. Hodges, Tex.Civ.App, ......
  • Bumgardner v. Corey, (No. 9316)
    • United States
    • Supreme Court of West Virginia
    • 26 Mayo 1942
    ...continued; but there is no presumption of such status at a period antedating that on which it is established." Hentz v. Wallace's Admr., 153 Va. 437, 150 S. E. 389. See also: Shores-Mueller Co. v. Palmer, 141 Ark. 64, 216 S. W. 295; Nichols v. Pool, 47 N. C. 23; Rowan v. Hodges (Tex. Civ. A......
  • Request a trial to view additional results
19 cases
  • Rawle v. Mcilhenny
    • United States
    • Virginia Supreme Court of Virginia
    • 15 Noviembre 1934
    ...the defendant moved to strike out the plaintiff's evidence. The motion was sustained and the judgment affirmed. Hentz Wallace's Adm'r, 153 Va. 437, 150 S.E. 389, was a bill in chancery to have an ex parte probate of a will set aside, upon an issue of devisavit vel non. At the conclusion of ......
  • Rawle v. Mcllhenny
    • United States
    • 15 Noviembre 1934
    ...the defendant moved to strike out the plaintiff's evidence. The motion was sustained, and the judgment affirmed. Hentz v. Wallace's Adm'r, 153 Va. 437, 150 S. E. 389, was a bill in chancery to have an ex parte probate of a will set aside, upon an issue of devisavit vel non. At the conclusio......
  • Bumgardner v. Corey, No. 9316.
    • United States
    • Supreme Court of West Virginia
    • 26 Mayo 1942
    ...continued, but there is no presumption of such status at a period antedating that on which it is established." Hentz v. Wallace's Adm'r, 153 Va. 437, 150 S.E. 389. See, also, Shores-Mueller Co. v. Palmer, 141 Ark. 64, 216 S.W. 295; Nichols v. Pool, 47 N.C. 23; Rowan v. Hodges, Tex.Civ.App, ......
  • Bumgardner v. Corey, (No. 9316)
    • United States
    • Supreme Court of West Virginia
    • 26 Mayo 1942
    ...continued; but there is no presumption of such status at a period antedating that on which it is established." Hentz v. Wallace's Admr., 153 Va. 437, 150 S. E. 389. See also: Shores-Mueller Co. v. Palmer, 141 Ark. 64, 216 S. W. 295; Nichols v. Pool, 47 N. C. 23; Rowan v. Hodges (Tex. Civ. A......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT