Powell v. Sayres

• Decision Date: 15 July 1950
• Docket Number: No. 10218,10218
• Parties: POWELL, v. SAYRES et al.
• Court: West Virginia Supreme Court

Page 740

60 S.E.2d 740

134 W.Va. 653

POWELL, v. SAYRES et al.

No. 10218.

Supreme Court of Appeals of West Virginia.

Submitted April 19, 1950.

Decided July 15, 1950.

Syllabus by the Court.

1. The provisions of Code, 56-4-56, are not applicable in a suit wherein an issue devisavit vel non is directed under Code, 41-5-11, and a decree pro confesso should not be rendered for the reason that an answer was not filed by the defendant within fifteen days after overruling of a demurrer to the bill of complaint.

2. A beneficiary of an alleged will is incompetent to testify relative to the execution of such will and the mental capacity of the testor upon the trial of an issue devisavit vel non testing the validity of such will.

3. The verdict of a jury upon an issue devisavit vel non not sustained by evidence will be set aside and a new trial thereof awarded.

William T. George, Sr., William T. George, Jr., Philippi, for appellant.

L. Baker Fowler, Elkins, for appellees.

LOVINS, President.

Lulu Powell, who will be hereinafter designated as 'plaintiff', instituted this suit in the Circuit Court of Randolph County against Odbert Sayres, Odbert Sayres, executor of the alleged will of Wade H. Sayres, Aaron Sayres and Arnett Sayres, who will be hereinafter referred to as 'defendants'. The object of the suit is to ascertain which of two writings, if either, is the true last will and testament of Wade H. Sayres.

The trial court, in response to the prayer of the plaintiff's bill of complaint, directed an issue devisavit vel non. That issue was submitted to a jury, resulting in a verdict that the writing dated December 12, 1947, hereinafter designated as 'writing No. 2', is the true last will and testament of Wade H. Sayres. The trial court entered a decree in accordance with the verdict, from which plaintiff appeals.

Wade H. Sayres executed a writing, dated May 5, 1947, hereinafter referred to as 'writing No. 1', which writing is alleged to be his last will and testament. By that writing he devised and bequeathed all of his property remaining after the payment of his debts, funeral and other expenses to the plaintiff. He also executed writing No. 2, while in Randolph County, which reads as follows 'I, Wade H. Sayres being of sound mind having decided to make my home for the rest of my natural life with my son Odbert Sayres of Harding, W. Va. do this day will to him for my keep all of my real and personal property and name him administerator of my estate without bond.

'This is my last will and testament.

'Wade H. Sayres

'X His Mark

'Witness O. L. Randolph

'Witness Sylvia Randolph'

Writing No. 1 was admitted to probate on June 2, 1948, by the Clerk of the County Court of Taylor County, as and for the last will and testament of Wade H. Sayres, and plaintiff was appointed executrix in that proceeding. Writing No. 2 was admitted to probate on January 17, 1948, by the Clerk of the County Court of Randolph County, as and for the last will and testament of Wade H. Sayres, and Odbert Sayres was appointed executor by such clerk. In each instance the admission to probate was ex parte.

Plaintiff's bill alleges that Wade H. Sayres was a resident of Barbour County, that early in December, 1947, he went to the home of his son, Odbert Sayres, in Randolph County, and that Wade H. Sayres went there on a visit, but Odbert Sayres testified that his father changed his residence from Barbour County to Randolph County.

Plaintiff further alleges that writing No. 1 is the true last will and testament of Wade H. Sayres; that Wade H. Sayres was not mentally competent to make a will at the time writing No. 2 was signed; that such writing is not properly executed, if Wade H. Sayres did, in fact, execute it; and that if he did, in fact, execute writing No. 2, that his signature was obtained by undue influence. Plaintiff prayed that an issue devisavit vel non be directed to determine which of such writings, if either, is the true will of Wade H. Sayres, and for general relief.

Odbert Sayres in his own right filed a demurrer to plaintiff's bill of complaint on October 15, 1948, which was overruled on March 8, 1949. On the last-mentioned date, the time for filing an answer to the bill of complaint was extended to May 1, 1949, but such answer was not filed until June 3, 1949, when the joint and separate answer of Odbert Sayres, as executor of Wade H. Sayres, and as an individual, was filed by leave of court, no further extension of time having been theretofore granted. But the decree filing said answer recites that good cause was shown for an extension of the time for filing same.

The answer of Odbert Sayres, in his own right and as executor, avers that writing No. 1 is not the true last will and testament of Wade H. Sayres; that writing No. 2 was properly executed; that there was no undue influence used to obtain the signature of Wade H. Sayres to such writing No. 2; and that Wade H. Sayres was mentally competent to make a will.

Plaintiff moved to strike the joint and separate answer of Odbert Sayres, individually, and Odbert Sayres, executor, from the record; that a decree pro confesso upon the bill be rendered against Odbert Sayres, individually, and Aaron and Arnett Sayres, which motions were overruled.

Thereafter Aaron and Arnett Sayres filed their joint and separate answer, in which it was alleged that Wade H. Sayres was not a resident of Barbour County, but was a resident of Randolph County at the time of his death; that writing No. 1 was not the last will and testament of Wade H. Sayres; that they and Odbert Sayres are the sons of Wade H. Sayres; that in the absence of a will that they and Odbert Sayres would be entitled to the property owned by Wade H. Sayres at the time of his death; and that Wade H. Sayres died testate, he having made his last will and testament, which was admitted to probate by the Clerk of the County Court of Randolph County, West Virginia.

Plaintiff demurred to, and moved to strike, the answer of Aaron and Arnett Sayres, which demurrer and motion were overruled. Plaintiff assigned as reasons in support of her demurrer and motion to strike that the answer of Aaron and Arnett Sayres raised no issue, since they would take no property of their father, if either of the writings executed by him should be held to be his last will and testament; and that the answer of Aaron and Arnett Sayres was not timely filed, plaintiff having theretofore moved for a decree pro confesso.

The demurrer to the answer of Aaron and Arnett Sayres and the motion to strike having been overruled, plaintiff moved for a continuance on the ground that the court had not theretofore directed an issue of devisavit vel non, but the trial court overruled the motion for a continuance, directed that the issue devisavit vel non be made 'to ascertain whether any, and if any, how much of the two paper writings described in the bill of complaint is the true last will and testament of Wade H. Sayres', and transferred the cause to the law side of the court for trial by a jury.

Plaintiff declined to introduce any testimony, although her counsel remained at the counsel table during the taking of such testimony.

Two witnesses were introduced by defendants to show that writing No. 2 is the last will and testament of Wade H. Sayres: Odbert Sayres and the Clerk of the County Court of Randolph County.

Odbert Sayres, the sole beneficiary under writing No. 2, testified that he was the son of Wade H. Sayres; that his father died at witness' home in Randolph County on January 6, 1948; that he had been there about one month, having brought his furniture and belongings to witness' home; that plaintiff had filed a claim against his father's estate for amounts allegedly due her for his father's room and board; that Wade H. Sayres left a will dated December 12, 1947; that O. L. Randolph and Sylvia Randolph were attesting witnesses to Wade H. Sayres' will, and present at the time the writing was signed; that the attesting witnesses signed writing No. 2 in the presence of his father, and in the presence of each other; that the writing was admitted to probate by the Clerk of the County Court of Randolph County on the sworn statements of the attesting witnesses; that his father was over the age of twenty-one, and that he was of sound mind.

The Clerk of the County Court of Randolph County testified that writing No. 2 was admitted to probate on January 17, 1948, and identified a certified copy of such writing; that the admission to probate was made upon the sworn statements of the attesting witnesses, who stated that Wade H. Sayres made his mark to said writing in their presence, and that they, the attesting witnesses, signed the writing as witnesses at the request of Wade H. Sayres, in his presence, and in the presence of each other.

Plaintiff assigns many errors, most of which are relatively unimportant and call for no extended discussion. We think that the following suffice to dispose of all substantial questions raised on the record: (1) Was plaintiff entitled to have a decree pro confesso entered as to any or all of the defendants; (2) was Odbert Sayres' testimony concerning the execution of writing No. 2 and the mental capacity of his father admissible; and (3) is their sufficient competent evidence to support the verdict of the jury and the decree of the trial chancellor?

Preliminary to a discussion of the controlling questions, it is to be observed that there was no occasion for transferring this case to the law side of the Circuit Court of Randolph County, since an issue devisavit vel non may be tried at the bar of a court of equity. Coalter's Ex'r v. Bryan, 1 Grat. 18, 86.

We do not perceive any error in the action of the trial court in overruling the demurrer of plaintiff to the answer of Odbert Sayres, in his own right, and Odbert Sayres as executor. Likewise the motion to strike said answer from the record, as will be hereinafter shown, was not...