Lamberts v. Cooper's Ex'r

• Citation: 70 Va. 61
• Court: Virginia Supreme Court
• Decision Date: 20 September 1877
• Parties: LAMBERTS v. COOPER'S ex'or & als.

70 Va. 61

LAMBERTS v. COOPER'S ex'or & als.

Supreme Court of Appeals of Virginia.

September 20, 1877

Absent, Moncure, P., and Anderson, J.

1. On the trial of an issue of devisavit vel non, if one of the parties object to the admission of a person to testify on the ground of interest; or if objection is made to the admission of evidence of the character of a witness who had testified, on the ground that no proper foundation had been laid for its introduction; and the objections are overruled and the witness and the evidence is admitted; and the objector does not except at the time, or give notice of his intention to except before the verdict is rendered, he waives the objection, and cannot rely upon it upon a motion for a new trial. The same rule applies upon the trial of such an issue as applies on a trial at common law.

2. Upon a motion to set aside the issue on the ground that the verdict was contrary to the evidence, the court overrules the motion and makes a decree according to the verdict, and the party moving files a bill of exceptions to the refusal of the court to set aside the verdict, and all the evidence is set out in the bill of exceptions. The appellate court will reject all the parol evidence of the exceptor which is in conflict with that of the other party; and if upon the evidence of the appellee and written evidence of the appellant, the case is in favor of the appellee, the decree will be affirmed.

3. The attesting witnesses of a will who are introduced to prove the will was not properly executed, or the incapacity of testator, will not be excluded; but their evidence will be received with much suspicion.

4. Though the statute requires at least two witnesses to a will it may be proved by one of them, he proving the attestation of the other.

This case was heard at Wytheville, but was decided at Staunton. It was a suit in equity in the circuit court of Bland county brought in May, 1871, by Isaac P. and A. D. Lambert to set aside a will of Mary Cooper, deceased, which had been admitted to probate in the county court of Tazewell county in May, 1861. The grounds on which they assailed the paper were first, that it had not been properly executed; second, that Mary Cooper was not of sound and disposing mind and memory at the time she executed the paper; and, third, that she was practiced upon and hoodwinked into the execution of the same. The legatees under the will answered, and denied the truth of all or any of the grounds stated in the bill for setting aside the will; and an issue devisavit vel non was directed to be tried at the bar of the court.

On the trial of the issue the jury found a verdict in favor of the will; and thereupon the plaintiffs moved the court to set aside the verdict and grant a new trial of the issue, on the ground that it was contrary to both the law and the evidence. This motion the court overruled; and the plaintiffs excepted. The bill of exceptions contains all the evidence, and of course it is contradictory. The plaintiffs in the issue to sustain the will introduced William M. Bishop as a witness. He was the executor named in the will, and had qualified as such. His testimony went to prove the due execution of the will, and that Mrs. Cooper was of sound disposing mind and memory at the time.

There were two other subscribing witnesses to the will, who were introduced by the contestants. They said they did not think Mrs. Cooper capable of making a will. The plaintiffs in the issue then introduced two witnesses-- Elizabeth Lambert, who was objected to as incompetent on the ground of interest; but the court overruled the objection, and no exception was taken to the ruling of the court; and James Cundiff, whose testimony as to the character of one of the contestants' witnesses was objected to by them; but the court overruled the objection and admitted the evidence; and again no exception was taken to the ruling of the court.

In May, 1876, the cause came on to be heard, when the court dismissed the bill with costs. And thereupon the plaintiffs applied to a judge of this court for an appeal; which was allowed.

Crockett & Blair and R. C. Kent, for the appellants.

D. S. Pierce, for the appellees.

OPINION

STAPLES, J.

This was an issue devisavit vel non. The jury having found in favor of the will, the appellants, who were the defendants below, moved the court to set aside the verdict, as manifestly contrary to the law and the evidence, and grant them a new trial; which motion was overruled; and the appellants excepted. And thereupon the court certified all the evidence given on both sides.

In this certificate it was stated that the appellees, who were the propounders of the will, introduced Mrs. Elizabeth Lambert as a witness (the widow of Joseph Lambert, one of the legatees under the will) to whom the appellants objected as incompetent; but the court overruled the objection and permitted the witness to testify.

This ruling of the court is one of the errors assigned in the petition for an appeal. It does not appear, however, that the appellants excepted to the opinion of the court permitting the witness to testify, or intimated a purpose or desire to save the point. The fact that objection was made at all to the witness only appears from the certificate of the evidence given by the judge upon overruling the motion for a new trial. Conceding that the court erred in its decision, can the appellants rely upon it here as ground of reversal? In Peery's adm'r v. Peery, 26 Gratt. 324, the latest case upon this point, it was held to be the established rule of the court, that notice must be given at the time of the ruling, or at least before verdict, that the point will be saved, although the bill of exceptions may be drawn up and signed at any time during the term. See the cases there cited in support of this view.

It is said, however, that upon an issue out of chancery, it is unnecessary to take a bill of exceptions; that upon the trial all the proceedings are part of the record in chancery; that the court which tries the issues only certifies the verdict and that carries with it all the proceedings belonging to the verdict, the empaneling of the jury, the points ruled by the court at the trial, and, in short, anything which is regularly made a part of the record. In support of this position the counsel rely upon the case of Watkins and wife v. Carlton, 10 Leigh 560. That case does not, however, decide that a bill of exceptions is not necessary upon the trial of an issue out of chancery. It merely decides that when exceptions are filed to opinions of the court and made a part...