Payne v. Payne.

• Decision Date: 30 September 1924
• Docket Number: No. 4872.,4872.
• Citation: 97 W.Va. 627
• Court: West Virginia Supreme Court
• Parties: Hortense E. Payne v. Olinda Pendell Payne et al.

97 W.Va. 627

Hortense E. Payne

v.Olinda Pendell Payne et al.

No. 4872.

Supreme Court of Appeals of West Virginia.

Submitted February 5, 1924.

Decided September 30, 1924.

1. Wills Test of Mental Capacity of Testator to Make Determined as of Time Will Was Made.

In a suit to annul a will on the ground of mental incapacity of the testator, mere infirmity of mind and body due to a paralytic stroke is not sufficient to overcome the legal presumption of capacity in the testator; the true test of his mentality is to be determined as of the time the will was made and executed, and it must affirmatively appear that he did not then have mind sufficient to understand the nature and consequences of his act, the property to be disposed of and the objects of his bounty. A case in which the principle herein announced is applied. (p. 633.)

2. Same Undue Influence Must Be Such as Will Destroy Free Agency of Testator.

If undue influence is charged, testator's weakened physical condition is to be considered, but the undue influence must be shown to be such as to wholly destroy the free agency of the testator and to substitute the will of another for his. (p. 633.)

3. Same Proceeding to Set Aside Burden of Proof.

In a chancery proceeding to set aside a will the burden of proving the due execution of the will and the testamentary capacity of the decedent is upon the proponents. The bui'den of proving undue influence, however, is upon the contestants, (p. 633.)

4. Same Similarity of Will Sought to be Impeached to a Former One a Circumstance Tending to Show Testator's Competency and Rebut Undue Influence.

The fact that the will sought to be impeached is very similar to wills formerly executed by testator when unquestionably in possession of his faculties and that it merely modifies or supplements the provisions of such prior wills so as to meet changed conditions, is a circumstance tending to establish testator's competency and to rebut the charge of undue influence. (p. 638.)

5. Same Virtues or Solicitations of Wife W'hich Do Not Destroy Free Agency Not Grounds for Setting Aside.

The influence which a wife, by her virtues or solicitations, exerts over her husband, causing him to make a will in her favor, constitutes no ground for setting it aside, unless her influence over him amounts to force or coercion destroying his free agency (p. 642.)

6. Same Feelings of Testator as Disclosed by Letters to Beneficiaries May Be Considered in Determining His Intentions and State of Mind.

In determining whether a will as executed represents the true intentions of the testator, it is sometimes necessary to inquire into the feelings of the testator toward his beneficiary over a considerable period of time. To this end, letters written to testator by his son, which would naturally tend to increase testator's affection for his wife, later his chief beneficiary, and to lessen his regard for his daughter, the contestant, and letters written by testator to his wife, indicating his affection for her, are admissible as proof of testator's! state of mind, (p. 644.)

7. Evidence Objection to Admission of Letters From Husband to Wife Will Not Be Sustained ori the Grounds of Their Privileged Character, When Not Admitted to Reveal Anything of Confidential Nature.

While all letters from husband to wife are presumed to be confidential, if the purpose for which they are sought to be admitted is not to reveal any thing of a secret or confidential nature, objection to their admission on the ground of their privileged character will not be sustained. (p. 644.)

McGinnis, Judge, absent.

Appeal from Circuit Court, Harrison County. Suit by Hortense E. Payne against Olinda Pendell Payne. Decree for plaintiff, and: defendant appeals.

Reversed and rendered.

Hoffman & Templeman, for appellee.

Melvin G. Sperry, R. 8. Douglas, Carter & Sheets and Steptoe & Johnson, for appellants.

Meredith, President:

Hortense E. Payne, one of the beneficiaries of the will of her father, Amos Payne, deceased, brought this suit to impeach the will, and after a finding in her favor by the jury to which the issue was submitted, the circuit court of Harrison County entered its decree declaring said purported will and the probate proceedings confirming the same to be a nullity. Olinda Pendell Payne, also a beneficiary under the will, the widow of the testator, resisted the suit in the circuit court and, together with the Clarksburg Trust Company as administrator with the will annexed appeals from the circuit court's decree. As the Clarksburg Trust Company's interest is largely formal, we shall, when using the term "appellant" have reference to the widow, Olinda Pendell Payne.

Two issues arise in the case:

1. Whether the testator was mentally competent to make the will, and,

2. Whether undue influence was exerted on the part of Olinda Pendell Payne, the widow and chief beneficiary.

A finding that the testator was mentally incompetent would of course preclude the necessity of determining the second question. We will therefore consider the inquiries in the order in which we have put them.

Amos Payne, a native of Harrison County, married early in life and with his first wife lived for a time in the state of Missouri. Four children were born of that marriage, Hortense, the contestant and appellee in this case, Henrietta, Thomas and Louis. In 1877 the first wife died and about 1879 the family returned to Harrison County. Thomas died in 1902, Henrietta in 1909, and Louis in 1919, all without issue leaving only Hortense, who was married and about fifty years of age when she instituted this suit. Amos Payne married the appellant in 1901; she was a lady of attainments, and the union, so far as the husband and wife were concerned, seems to have been a happy one. Not so however with the two daughters, particularly the appellee. Although there is evidence that she was anxious for her father to remarry, it was not long after the ceremony until misunderstanding and bickering began to disunite the daughters from their parental home, and since 1903, or about that time, she has not resided there, but in other property belonging to her father. Decedent and appellant from that year until his death lived in an apartment in the Payne Building, erected by the decedent on Pike Street in Clarksburg. That building is valued in the appraisement at $40,000.00, about half of the whole estate, and the apportionment of it in the will is perhaps the chief cause of this litigation.

About noon on Saturday, April 17, 1920, decedent at the age of seventy-four years, while in the lobby of the Gore Hotel, suffered a stroke of paralysis which affected the entire left side of his body. He was removed to his home in a semiconscious condition and never left his home thereafter, his death occurring June 21, 1920. "While very, ill he executed his will on Monday, April 26, 1920. It is essential that we consider the circumstances of its execution, paying particular attention to the testator's physical and mental condition. Before doing so, however, in order that the object of the suit may be more clearly understood, we think it proper to call attention to the more important provisions of the will itself.

As stated, the instrument bears date, April 26, 1920". It was drawn by John C. Southern, testator's attorney, and1 is witnessed by E. B. Deison, a banker, and by J. W. Johnston, testator's personal physician. It contains thirteen paragraphs. To his wife, Olinda Pendell Payne, testator gave the following properties:

1. Pee simple interest in a house and lot purchased from Alexander C. Osborne, appraised at $10,000.00.

2. Eighty-one shares of stock in three banks in Clarksburg and Bridgeport, appraised at $15,505.00.

3. Twenty-two shares of stock in the Lee and Parr Hardware Company, appraised at $4,400.00.

4. All of testator's government bonds, appraised at $1,864.00.

5. All of testator's household goods, including a piano and an automobile, together appraised at $550.00.

6. Certain Jackson lots on Raymond Alley, appraised at $4,000.00.

7. Fee simple interest in the eastern one-half of the Payne Building, the whole of which was appraised at $40,000.00.

8. All of testator's oil and gas royalties and holdings, appraised at $690.94.

9. One-half of the residue of the estate after the specific devises and bequests contained in the will.

To Hortense E. Payne, the contestant and appellee, testator gave properties as follows:

1. Life estate in the western one-half of the Payne Building, remainder in fee to her children, or if she should die without children or descendants surviving, then the remainder to the widow, Olinda Pendell Payne, in! trust, the proceeds to be used for the erection of public comfort stations and resting places in Clarksburg.

2. Seven shares of stock of the Merchants and Producers Bank of Salem, West Virginia, appraised at $1,225.00.

3. Half interest in the residue of testator's estate, after the bequests and devises aforesaid.

Testator also made various small bequests to other relatives and friends, including a gift of $100.00 to Mrs. Louis M. Payne, the widow of his deceased son. It is clear that appellant, Olinda Pendell Payne, received a much larger share of the estate than did. the daughter who prosecutes this contest.

It is undisputed that from the date of the stroke, April 17th, until his death testator was without the use of his left leg and arm, and it seems equally clear that during the earlier part of his illness his speech was seriously impeded. To some extent he gradually overcame this impediment, and there were times, according to several witnesses, when his articulation was clear and distinct, though perhaps more deliberate than when he was in good health. From the very first day of his confinement until his death he was the recipient of a great many social calls, and it is by these visitors, by his relatives and by his doctors and nurses that we are informed as to his con- dition. About a dozen of these...