Montague v. Allan's Ex'r

• Decision Date: 14 February 1884
• Citation: 78 Va. 592
• Parties: MONTAGUE AND WIFE v. ALLAN'S EX'OR AND ALS.
• Court: Virginia Supreme Court

78 Va. 592

MONTAGUE AND WIFE v. ALLAN'S EX'OR AND ALS.

Supreme Court of Appeals of Virginia.

February 14, 1884

Appeal of D. P. Montague and Genevieve, his wife, formerly Genevieve Allan, from decree of chancery court of city of Richmond pronounced February 24th, 1883, in suit wherein appellants were plaintiffs, and George W. Mayo, executor of Louisa G Allan, deceased, and others, were defendants. The object of the suit was to annul the instrument propounded as the will of the decedent, and the issue was " devisavit vel non, " and the complaint is of the verdict and the decree founded thereon, which were in favor of the defendants. Opinion states the facts.

Joseph Christian and John Lyon, for the appellants.

Jones, Kean & Nelson, for the appellees.

OPINION

FAUNTLEROY, J.

On the 2d of April, 1881, Mrs. Louisa G. Allan, of Richmond, executed and acknowledged her last will and testament--a paper drawn by Mr. George W. Mayo, who was named as one of the executors, and whose wife was a large beneficiary. The testatrix died on the 24th of the same month. The will was admitted to probate by the chancery court for the city of Richmond April 27th, 1881, when Geo. W. Mayo qualified as executor.

On September the 5th, 1882, Miss Genevieve Allan (who since the institution of the suit has intermarried with D. P. Montague) exhibited her bill in the said chancery court, in which, after reciting the probate of the paper aforesaid, and stating that she is one of the three heirs-at-law and distributees of Louisa G. Allan, deceased, she alleged that Mrs. Allan, when she signed and acknowledged the will or testamentary writing aforesaid was insane; that she was not of sound mind; that she was mentally incompetent to make a lawful will, and that the paper in question was procured by George W. Mayo, who was the confidential agent and adviser of the testatrix, by the selfish exercise of undue influence over her mind, enfeebled by injuries, disease and age.

Mayo, his wife and some other defendants, answered the bill; the cause was matured; and the chancellor directed the trial of an issue, devisavit vel non, at the bar of the court. At the close of the evidence, of which a great deal, both oral and written, was introduced before the jury, the plaintiffs in the issue (the appellees here) requested the court to give certain instructions, which the court did give, without objection or exception from the defendants in the issue (the appellants). Upon the trial of the issue, the jury failed to agree upon a verdict; but upon a second trial, at a subsequent term of the said court, the jury found a verdict sustaining the said paper of April 2d, 1881, in all its parts and provisions, as the true last will and testament of Louisa G. Allan, deceased. Upon the recordation of this verdict, the defendants in the issue moved the court to set aside the verdict of the jury and to grant a new trial on the said issue; and the court took time to consider thereof. On the 24th February, 1883, the court overruled the said motion to set aside the said verdict of the jury and to grant a new trial on the issue directed in the cause; and pronounced its decree, in conformity with the said verdict of the jury, that the will of the testatrix, Louisa G. Allan, admitted to probate in the said court on the 27th day of April, 1881, is the true last will and testament of Louisa G. Allan, deceased; and the court dismissed the bill of the complainants with costs. From this decree the appeal is taken, and this court is now to decide whether there is error in the proceedings of the court below, as disclosed by the transcript of the record in the cause.

That the will was properly executed, according to the statute, there is no room for contention, and there is none: it was signed, sealed and acknowledged by the testatrix, in the presence of two witnesses, who, at her request, in her presence, and in the presence of each other, affixed their signatures as attesting witnesses. The statute was complied with in every particular.

The instructions given by the court are not complained of. They were not excepted to by either plaintiffs or defendants in the court below; in fact, they were accepted, and acquiesced in by both sides; and they correctly expound the law of the case. No exceptions having been taken to the instructions, neither party will be allowed to question here the correctness of the law laid down by the court as applicable to the evidence in this cause. Lamberts v. Cooper's Ex'or, 29 Gratt. 66.

The validity of Mrs. Allan's will is disputed on two grounds--first, that she was insane and mentally incapable of making a lawful will at the time that she executed it; and, secondly, that it was made under the improper or undue influence of George W. Mayo, who wrote it; who is named as executor; who was the confidential agent and adviser of the testatrix, and whose wife is the principal beneficiary. All the facts proved in the cause are certified in the record, and the proofs show that the contestants' own witnesses all testified to the intelligence and capacity of the testatrix when her attention was fixed; they contain no hint of insanity, but, on the contrary, they show a testatrix of uncommon intelligence, business capacity, self-reliance and will, who, recently before her death, undertook and intelligently conducted intricate and tedious business transactions, and who to the day of her dissolution--certainly to within two or three days of her death--retained her clear intellect and controlled and directed her domestic affairs. The certificate of facts says: " All of these witnesses (for the contestants) described her failure of memory only as the forgetfulness of old age, and none of them doubted her intelligence and capacity when her attention was fixed." As to the failure of memory, the authorities are explicit that, if it be merely such as is incident to old age, it does not affect testamentary capacity. Eddy's Case, 32 N.J.Eq. 701; Zoe v. McCord, 74 Ill. 33.

We think that the testimony of the contestant's own witnesses fully proves that the testatrix was both sane and capable of making the will. But the propounders of the will proved that Mr. Ellyson, an educated lawyer, who was called in to attest the execution of the will, with the view of testing her testamentary capacity, conversed with her on the occasion when she executed the will, and was perfectly satisfied as to the condition of her mind; that he " was perfectly certain of her capacity to make a will, and was so struck with her mental vigor, for one of her age, that he remarked on it when he got home." Mr. Hopkins, the other subscribing witness, " is certain that Mrs. Allan was in her right mind, and was competent to make a will." On or about the 20th or 25th of March, 1881, Dr. McGuire was again sent for to cut a cancer from Mrs. Allan's other breast (he having performed that operation in 1875 upon one of her breasts), he consulted with Dr. Harris, her regular family physician, and talked freely with her, when her " mind clearly grasped and her courage bravely faced the alternative before her--death certain in the not remote future in one event; death tedious, lingering, loathsome, in the other event; death under the knife, possibly, speedy but painless that she made deliberate, intelligent and voluntary choice." On April 1, 1881, he called to see her, and found her in the hall, with the pictures,...