Hess v. Arbogast

• Decision Date: 21 December 1988
• Docket Number: No. 6,No. 17913,6,17913
• Citation: 376 S.E.2d 333,180 W.Va. 319
• Parties: Marie HESS v. Vere ARBOGAST, et al. and IOOF Tygart Valley Lodge
• Court: West Virginia Supreme Court

Page 333

376 S.E.2d 333

180 W.Va. 319

Marie HESS v. Vere ARBOGAST, et al. and IOOF Tygart Valley Lodge No. 6.

No. 17913.

Supreme Court of Appeals of West Virginia.

Dec. 21, 1988.

Syllabus by the Court

1. " ' "Upon a motion to direct a verdict for the defendant, every reasonable and legitimate inference fairly arising from the testimony, when considered in its entirety, must be indulged in favorably to plaintiff; and the court must assume as true those facts which the jury may properly find under the evidence. Syllabus, Nichols v. Raleigh-Wyoming Coal Co., 112 W.Va. 85 [, 163 S.E. 767 (1932) ]." ' Point 1, Syllabus, Jenkins v. Chatterton, 143 W.Va. 250 (1957)." Syl. pt. 1, Jividen v. Legg, 161 W.Va. 769, 245 S.E.2d 835 (1978).

2. "Where there is competent evidence introduced during the trial of a case to impeach a will by both the proponent and contestant, but such evidence is in conflict with regard to mental capacity of the testator at the time the will was executed, it was a matter for jury determination." Syl. pt. 8, Montgomery v. Montgomery, 147 W.Va. 449, 128 S.E.2d 480 (1962).

3. In order for hearsay to be admissible evidence, it must first be either excepted or exempted from the general bar from admissibility contained in Rule 802. Second, it must meet the general requirements for admissibility, authenticity, relevancy, and competency.

4. Under W.Va.R.Evid. 803(8)(C), the contents of a public report, record or document are an exception to the hearsay rule and are assumed to be trustworthy, unless the opponent of the report establishes that the report is sufficiently untrustworthy.

William F. Byrne, Morgantown, for appellant.

Steven Hunter, Charleston, for Arbogasts.

Richard W. Cardot, Elkins, for IOOF Lodge.

McHUGH, Chief Justice:

This case is before the Court upon the appeal of Marie Hess from the September 11, 1986 and September 29, 1986 orders of the Circuit Court of Randolph County which, respectively, granted the appellees' motions for a directed verdict and denied the appellant's motion for a new trial. The appellant contends that the trial judge erred when he failed to construe all inferences in favor of the nonmoving party in granting the motion for a directed verdict. We reverse and remand, with directions to award a new trial consistent with this opinion.

Hugh I. Currence died in 1982, at the age of 82. His daughter, Marie Hess, sought to invalidate a deed and a will made by her father in 1979. She alleged that her father was incompetent during both transactions and that: the appellees, Vere and Ruth Arbogast, fraudulently induced the sale of certain property; a member of the International Order of Odd Fellows (IOOF) Tygart Valley Lodge No. 6 unduly influenced her father when he made his will. Only those facts pertinent for determining the propriety of granting a directed verdict for the appellees will be discussed below.

In early August, 1979, the decedent deeded a remainder interest in 44 acres, which contained his homestead, to the appellees, the Arbogasts. He retained a life estate for himself. The contract price was $10,000. ¹ During the month of August, a local bank issued a certificate of deposit (CD) and savings bonds in the names of "Hugh I. Currence or Vere Arbogast." ² The total purchase price of the bonds and CD was $7225. Appellee Arbogast retained these bonds for some time until he was requested by Attorney Thomas Ross, draftsman of the will, to surrender them.

In late August, 1979, Parker Sycafoose (deceased) a friend, and fellow Odd Fellow of Currence, filed a verified petition with the Randolph County Commission to commence incompetency proceedings against Currence pursuant to W.Va.Code, 27-11-1(b) [1978]. ³

In October, 1979, the Randolph County Commission issued an order which found Currence "incompetent to manage his own affairs" based upon "evidence produced before the Commission." The order further appointed Sycafoose his committee. Sycafoose's attorney was Thomas Ross II. Another attorney had previously been appointed guardian ad litem for Currence when Sycafoose filed the petition.

Eight days after the order was issued, Currence signed a new will drafted by attorney Ross. The will devised and bequeathed all real, personal and mixed property to the IOOF. ⁴ Attorney Ross and his secretary witnessed the will. At trial, both testified that Currence appeared competent and did not wish to leave his estate to his children. Sycafoose was present when the will was signed.

A social worker for the West Virginia Area Agency on Aging, Evelyn Parrack, met with the decedent on a weekly to biweekly basis throughout 1979 and helped him manage his financial affairs. At trial Parrack testified that the decedent was unaware that he had conveyed a remainder interest in the property to the Arbogasts. She further testified that while driving Currence to attorney Ross's office for the purpose of executing the will, Currence stated that he owned the previously conveyed 44 acres and desired to devise it to the IOOF.

General practitioner, Dr. Ernest Hart, treated the decedent in 1977 for generalized arteriosclerosis and organic brain syndrome. At trial, he testified that in his expert opinion the decedent was "noncompos mentos" or "[d]isoriented as to time, place [and] circumstances" following his treatment in 1977. Over defense counsel's objection, Dr. Hart, who saw Currence on several occasions on a nonprofessional basis in 1979, was not permitted to testify about Currence's condition in 1979.

The judge also ruled the order declaring Currence incompetent was not admissible evidence because it was not relevant, and none of the parties could locate a transcript of the competency hearing, as required by statute. See W.Va.Code, 27-11-1(c) [1978]. At the close of all the evidence, the trial judge granted directed verdicts in favor of both appellees. Neither the order granting the directed verdicts nor the order denying the appellant's motion for new trial address the appellant's contentions of incompetency, fraudulent inducement and undue influence. See W.Va.R.Civ.P. 52(a).

I

The standard of appellate review for directed verdicts is stated in syllabus point 1 of Jividen v. Legg, 161 W.Va. 769, 245 S.E.2d 835 (1978):

' "Upon a motion to direct a verdict for the defendant, every reasonable and legitimate inference fairly arising from the testimony, when considered in its entirety, must be indulged in favorably to plaintiff; and the court must assume as true those facts which the jury may properly find under the evidence. Syllabus, Nichols v. Raleigh-Wyoming Coal Co., 112 W.Va. 85 [, 163 S.E. 767 (1932) ]." ' Point 1, Syllabus, Jenkins v. Chatterton, 143 W.Va. 250 (1957).

Since the burden of proof and elements for a prima facie case for setting aside a deed and a will are different, and the appellant is challenging both the deed and the will, each transaction will be reviewed separately.

First, we will consider the deed. There is a rebuttable presumption that a grantor conveying real property is competent to execute a deed. Syl. pt. 1, Ellison v. Lockard, 127 W.Va. 611, 34 S.E.2d 326 [1945]. However, " ' "[l]ess evidence is required to establish incompetency where a grantor is aged, and enfeebled in body and mind. Hardin v. Collins, 125 W.Va. 81, 23 S.E.2d 916 [1942]." ' " Sheppard [v.] Clay Peacock Coal Co., 169 W.Va. 106, 109, 285 S.E.2d 902, 904 (1982), quoting Kadogan v. Booker, 135 W.Va. 438, 446, 66 S.E.2d 297, 302 (1951). In addition to the grantor's age and general physical and mental health, the circumstances surrounding the execution of the deed are significant. " ' "Where in addition to mental weakness of the grantor it further appears that inequitable circumstances attended the execution of the deed, the courts will the more readily intervene to set it aside." ' " Sheppard, 169 W.Va. at 109, 285 S.E.2d at 904,quoting Kadogan, 135 W.Va. at 446, 66 S.E.2d at 302, in turn quoting 26 C.J.S. Deeds, § 54, then in effect.

There are several significant evidentiary matters that militate against a directed verdict. The decedent's treating physician testified that upon last seeing the decedent on a professional basis in 1977, the decedent was disoriented. The social worker who visited the decedent during the time period in which the deed was made, testified that the decedent was unaware that he had conveyed any interest in the property. The purchase money for the remainder interest was converted into survivorship bonds and appellee Vere Arbogast retained the bonds for several months.

Viewed in the light most favorable to the appellant, it could be inferred from these facts that the decedent was, at least, infirmed in August, 1979, and that the Arbogasts fraudulently induced him to sell the remainder interest. Therefore, the trial judge erred when he directed a verdict in favor of the Arbogasts. ⁵

Second, in considering the status of the will, the burden is upon the proponent of the will to prove the mental capacity of the testator. Syl. pt. 7, Montgomery v. Montgomery, 147 W.Va. 449, 128 S.E.2d 480 (1962). Less mental capacity is necessary to make a will than a deed. Syl. pt. 16, Kerr v. Lunsford, 31 W.Va. 659, 8 S.E. 493 [1888]. Nonetheless, the proponent must prove that the decedent was capable of recollecting his property to be disposed of and knowing the objects of his bounty. Syl. pt. 19, Kerr, supra. The same testimony of the two disinterested witnesses, the physician and the social worker, viewed in a light most favorable to the appellant, create a factual question of the decedent's competency. Specifically, the social worker testified that upon driving the decedent to the will signing, the decedent stated that he planned to devise the previously conveyed 44 acres to the IOOF. See syl. pt. 6, Freeman v. Freeman, 71 W.Va. 303, 76 S.E. 657 (1912). It is well established that:

Where there is competent evidence introduced during the trial of a case to...