Parramore v. Taylor

• Decision Date: 26 May 1854
• Citation: 52 Va. 220
• Parties: PARRAMORE v. TAYLOR.
• Court: Virginia Supreme Court

52 Va. 220

PARRAMORE v. TAYLOR.

Supreme Court of Appeals of Virginia.

May 26, 1854

1. In construing the Code, the rule of construction is that the old law was not intended to be altered, unless such intention plainly appears.

2. What does not constitute incapacity in a testator.

3. What is not an improper influence which will invalidate a will.

4. The Code of 1849, ch. 122, § 4, p. 516, in relation to the attestation of wills, does not require that the witnesses shall subscribe their names in the presence of each other.^[1]

5. T subscribes his name to his will in the presence of C, and requests C to attest it, who does so. B is then called into the room, and T again acknowledges the paper as his will and requests B to attest it, who does so, C being present when T acknowledges the paper to B, but not subscribing it or recognizing his subscription at that time: The whole however, being done within a few minutes. The will was duly attested.

At the October term 1851 of the Circuit court of Accomack county, a paper purporting to be the will and codicil thereto of Thomas T. Taylor deceased, was propounded for probat by Edward W Taylor, one of the nominated executors therein; and its admission to probat was opposed by Thomas H. Parramore and Sarah A. his wife; and Thomas H. Parramore dying during the controversy in the Circuit court, the opposition to the probat was continued by Sarah A. Parramore, who and the propounder of the will were the only children of Thomas T Taylor. The will bears date the 24th of June 1851. It was written by James S. Corbin, and is attested by him and by Edward C. Bloxom and Littleton Walker. The codicil bears date the 7th of September 1851, and was also written by Corbin and was attested by him and Robert J. and William T. Silverthorn. The proceedings in the cause, and the facts on which the opinion of the court is founded, are stated by Judge MONCURE in his opinion. The court below admitted the will and a part of the codicil to probat; and from that sentence Mrs. Parramore obtained an appeal to this court.

R. T. Daniel, for the appellant.

Patton, for the appellee.

MONCURE J.

This is an appeal from a sentence of the Circuit court of Accomack, admitting to probat two testamentary writings purporting to be the will and codicil of Thomas T. Taylor. They were propounded by his son Edward W. Taylor the appellee, who is the principal devisee and legatee, and named executor; and were contested by his daughter Sarah A. Parramore the appellant, and her husband Thomas H. Parramore, who is since dead; the said son and daughter being the testator's only children and heirs at law. They were contested on the grounds of, first, incapacity; secondly, undue influence; and thirdly, defective execution.

The case was first tried by a jury; but it was unable to agree, and was discharged. Afterwards it was agreed to submit the whole case, upon the law and the evidence, to the court, from whose sentence either party might appeal; and that in the event of an appeal, it should be specially certified to the Court of appeals, that the judge sitting on the trial of the issue heard, and was present at the examination of, all the evidence in the cause. The court decided to admit the will and codicil to probat, with the exception of a part of the codicil considered by the court to have been improperly inserted therein. The examinations of the witnesses and the documentary evidence were certified as the facts proved on the trial, and were ordered to be made a part of the record in the cause. The whole case is now before this court for revision of the sentence of the Circuit court thereon.

I will consider the grounds of opposition to the probat in the order above stated. But it seems to be proper in the first place, to enquire, whether the testimony of James S. Corbin is to be regarded as credible. He is by far the most important witness in this cause; and if his testimony is to be believed, it conclusively settles at least two of the three questions arising in the case. He was the scrivener who wrote both the will and the codicil, as well as a prior will; was present at the execution and acknowledgment of all of them, and was a subscribing witness to all. It was of vital consequence to the contestant, therefore, to overthrow, if possible, the testimony of this witness; and an attempt was accordingly made to do so; or to weaken the force of the testimony as much as possible. The means mainly used for that purpose was a very long and close cross examination. No witness was introduced, no question asked, to impeach his general character for veracity or otherwise. The only evidence offered tending in any way to discredit him was that of Mrs. Young, a cousin of Mrs. Parramore, and it would seem, a sister of her husband Thomas H. Parramore. She testified that when the witness Corbin was formerly in attendance at court to prove the will and codicil, he dined with her husband Dr. Young; and in a conversation between them on the subject, Corbin, in answer to a question of the doctor, whether the testator had to reflect in disposing of his property, said " No, he recited or read it off as a school boy would a lesson; he (Corbin) said his brain was such that any impression might be made upon it." It is remarkable that her husband, who was also examined as a witness, and in answer to whose question the alleged statement of Corbin was made, did not remember it. The recollection of Mrs. Young as to the other circumstances of the visit and conversation was very indistinct. She said she did not know why the words of Corbin before stated made so strong an impression on her mind, unless it was confirming her in what she thought before, that her uncle was child-like. She admitted that Mrs. Parramore was a favorite cousin, and that she wished the will overthrown, because she thought, if left to himself, her uncle would never have made such a will. I have no idea that Mrs. Young, in giving her evidence, said anything that she did not believe to be true. But I think she was insensibly influenced by feelings of partiality, and misunderstood, or misconstrued, or did not rightly remember, the words of Corbin. The words, as stated by her, would have been in direct conflict with his sworn testimony given in court on the same day, and which seems to be substantially the same with his subsequent testimony in the case. Though subjected to the test of a close cross examination, his testimony is consistent in itself, and materially variant from none of the other testimony in the case. His intelligence appears from his evidence, and his general character for veracity is strongly sustained by several witnesses who have long known him, and whose testimony appears to be entitled to much weight. He ought, therefore, to be regarded as a truthful witness in the decision of this cause. I will now proceed to consider the grounds of opposition to the probat. And

First, as to the alleged incapacity of the testator.

The testator appears to have been a man of good common sense, and to have been prudent and careful in the management of his affairs. He was about seventy-five years of age when he died and for some time previous to his death had been in the habit of drinking freely, and perhaps many times to excess. It is not pretended, however, that he was incapacitated by the ordinary effects of old age, or drunkenness; or that he was under the influence of ardent spirit, or any other kind of stimulant, at the time of the execution of the will or the codicil. The only ground of the alleged incapacity relied on is, that for a few months before his death, and until his death, he was supposed to be affected by a disease of the brain, which produced occasional convulsions and partial paralysis, and that two of these convulsions or fits actually occurred while he was engaged in dictating the will to the scrivener. The commencement of the disease appears to have been early in June 1851. The will was executed and acknowledged on the 24th of that month, the codicil on the 7th of September thereafter, and the testator died on the 29th of the latter month. Dr. Joynes, a witness apparently of great intelligence, skill and scientific information, attended him during his last illness, and gives a minute account of the disease, and of the condition of the patient during his several visits; which were on the 17th and 19th of June, on the 29th and 31st of August, and on the 4th of September 1851. The disease with which he believed the patient was affected was " softening of some part of the left side of the brain." And the account which he gives of its nature and effects is as follows: " That disease is a softening, that is to say, a diminution of consistence of one or more parts of the brain, generally limited in extent, varying generally from the size of a pea to that of an orange: in a few cases affecting an entire half of the brain, rarely if ever the whole of it. It makes its attack in a variety of forms; sometimes the symptoms are very much those of ordinary apoplexy; the patient falling senseless and motionless, and dying in a few hours; in some instances, after the disease has commenced in this way, the patient, after a time, recovers his senses, but remains palsied in one or more limbs, with frequently more or less impairment of mind. In another class of cases, the disease begins with symptoms of inflammation of the brain, there being headache, fever, delirium, sometimes partial, convulsive movements, frequently with rigid contraction of one or more limbs, which is generally followed by palsy of the same limbs. In numerous cases, the approach of the disease is more gradual, the patient, perhaps, after suffering for a time with headache and giddiness, experiences...