Prichard v. Prichard, 10244

• Citation: 135 W.Va. 767,65 S.E.2d 65
• Decision Date: 08 May 1951
• Docket Number: No. 10244,10244
• Parties: PRICHARD et al. v. PRICHARD et al.
• Court: Supreme Court of West Virginia

Page 65

65 S.E.2d 65

135 W.Va. 767

PRICHARD et al. v. PRICHARD et al.

No. 10244.

Supreme Court of Appeals of West Virginia.

Submitted April 18, 1951.

Decided May 8, 1951.

Syllabus by the Court.

1. In a suit, under Code, 41-5-11, brought to impeach a testator's will, the two-year limitation within which such suit may be brought is of the right as well as the remedy, and if such suit is timely brought, other necessary and proper parties, brought into the suit on amendment of the pleadings after the two-year period, are not barred.

2. On the question of a testator's mental capacity to execute a will, testator's capacity at the time of the execution of the will is the determinative factor.

3. In a suit brought to impeach a will under Code, 41-5-11, the testimony of an attesting witness, who was likewise testator's attending physician at the time the will sought to be impeached was executed, is entitled to great weight. Likewise great weight should be attached to the testimony of the scrivener of the will, who, as testator's attorney, prepared the will sought to be impeached, in accord with detailed oral and written instructions given by the testator.

4. Greater mental capacity is required to execute a deed or contract than a will.

5. The fact that a non-attesting witness, who testified on an issue devisavit vel non under Code, 41-5-11, to the effect that the testator lacked mental capacity to execute the will, did business with the testator before, about the time of, and after the execution of the will sought to be impeached and shortly after the execution of the will, as notary, took testator's acknowledgment to important contractual papers, bears directly on the weight and credibility of the witness' opinion testimony concerning the testator's lack of mental capacity.

6. Old age and eccentricity incident thereto are not of themselves sufficient evidence to show lack of mental capacity of a testator to make a will.

7. Where on an issue devisavit vel non, uunder Code, 41-5-11, which provides that any party coming within the provisions thereof is entitled to an issue devisavit vel non, which event the trial chancellor has no discretion either to direct or to refuse to direct a trial by jury, this Court, upon reversing the decretal judgment of the trial court and setting aside the jury verdict, should grant a new trial.

F. F. Scaggs, J. F. Harrison, Wayne, Rummel, Blagg & Stone, Charleston, for appellants.

Okey P. Keadle, Huntington, S. Jewell Rice, Lexington, Ky., for appellees.

RILEY, Judge.

Allen C. Prichard and Sallie L. Grehan, respectively, the son and daughter of B. J. Prichard, deceased, late a resident of Wayne County, brought this suit on an issue devisavit vel non to impeach the will of the decedent, B. J. Prichard, dated November 30, 1938, and admitted to probate in the office of the Clerk of the County Court of Wayne County, against Etta R. Prichard, administratrix of the estate of B. J. Prichard, deceased, and Etta R. Prichard in her own right. From a decree based on a jury verdict, declaring the paper writing of November 30, 1938, not to be the true last will and testament of decedent, Etta R. Prichard, executrix of the estate of B. J. Prichard, deceased (erroneously named in the caption of the bill as Ella R. Prichard, administratrix), Etta R. Prichard in her own right; Alice Prichard, widow of E. F. Prichard, a deceased son of decedent; E. Gordon Davis, Jr., and Kathryn R. Clement, the children of Stella Davis, decedent's daughter, who predeceased decedent; B. R. Prichard, M. J. Prichard and R. G. Prichard, decedent's surviving sons; Etta R. Prichard, guardian of Belvard Gillette Prichard, an infant; and Belvard Gillette Prichard, an infant, in his own right, prosecute this appeal.

This suit was brought within the two-year time limitation provided by Code, 41-5-11. After the bill of complaint was filed early in 1944, the original defendants, Etta R. Prichard, executrix, and Etta R. Prichard, in her own right, suggested on the record additional parties, and an order was entered, after the expiration of the statutory two-year period, requiring that such additional parties be brought into the case. This was done by an amended and supplemental bill of complaint filed by plaintiffs in 1945. To the amended and supplemental bill of complaint, the proponents filed a plea in bar setting up laches and an acceptance of benefits, and a plea that new parties having been brought in after the two-year period the relief as to them is barred.

The contestants filed special and general replications and demurrers to the pleas, and the matters arising were submitted to the Circuit Court of Wayne County.

Before the case was set for jury trial, the circuit court entered a decree declaring: (1) That the plaintiffs had not been guilty of laches in the bringing and prosecution of this suit; and (2) that they were not estopped by accepting benefits under the will. This decree set the case for trial by a jury on March 16, 1948, on the single issue: 'Whether the paper writing probated on the 26th day of December, 1941, in the office of the Clerk of the County Court of Wayne County, in the State of West Virginia, purporting to bear date on the 20th day of November, 1938, which purports to be the will of B. J. Prichard, deceased, is the will of the said B. J. Prichard, deceased.' After a continuance the case was tried at the July term, 1948, resulting in the failure of the jury to agree on a verdict. The case was again tried resulting in the verdict and decree complained of.

At the trial of this case the jury was asked and answered in the negative the following interrogatory: 'Did the original plaintiffs, A. C. Prichard and Sallie L. Grehan receive and accept moneys, stocks or other property from the Executrix of the Estate of B. J. Prichard, deceased, given to them by the will of said decedent, and retain and use the same with the knowledge of the alleged mental condition of said decedent, as charged by them in the Bill of Complaint?'

Though the court had already decided the question presented in the interrogatory in the absence of a jury, it, probably as a matter of precaution, submitted the question to the jury in the form of the interrogatory.

The proponents of this will assign three grounds of error that: (1) Though the suit was brought within the two-year period, prescribed by Code, 41-5-11, the bringing in of new and necessary parties beyond the two-year time limit after the will was probated served to bar the suit; (2) the verdict of the jury in finding that the paper writing, dated November 30, 1938, was not the true last will and testament of decedent was based on insufficient evidence; and (3) the contestant plaintiffs having accepted benefits under decedent's will with knowledge of impairment of testator's mind, as alleged in their bills of complaint, have made an election and are thereafter barred in this suit from impeaching the will.

In support of the defense that, though the suit was brought within the two-year period, necessary and proper parties, which were brought into the suit on amendment of the pleadings, are barred under Code, 41-5-11, the proponents filed what purports to be a plea of the statute of limitations. Counsel's position, in filing a plea of the statute of limitations, fails to consider that Code, 41-5-11, does not provide for a statute of limitations in the ordinary sense of the term, but the time limit provision of the statute is part and parcel of the right and the remedy. McKinley v. Queen, 125 W.Va. 619, 25 S.E.2d 763. Once the suit has been instituted by proper parties, other parties may be admitted and the suit shall not fail because of the nonjoinder of parties. In Jackson v. Jackson, 84 W.Va. 100, pt. 8 syl., 99 S.E. 259, in appraising Section 32 of Chapter 77 of Barnes' Code, 1918, which is redrafted in the Code of 1931, 41-5-11, except that the latter statute reduced the five-year period to a period of two years, this Court held: 'Institution of a suit to impeach a will within five years from the date of the probate thereof is a sufficient compliance with the requirement of sec. 32 of ch. 77 of the Code, respecting the time of institution thereof, even though a necessary party has been omitted; and an amended bill making the omitted person a party may be prosecuted.'

On the second issue in this case, a careful examination of the record does not disclose that the decedent lacked such quality of mind as would inhibit him from executing the will sought be be impeached. B. J. Prichard was a well known citizen of Wayne County, West Vriginia; in 1902 he organized the Wayne County Bank, and became its president; from the year 1902 until his death in 1941 he was president of the bank; he was a practicing lawyer in the Town of Wayne, and the owner of extensive oil and gas interests in that county; and he and his family were the principal stockholders in that bank. This record further discloses that decedent until the close of the very evening of a long and useful life possessed a strong mind that was fully capable of disposing of property, both by will and by deed. In this regard it is well to bear in mind that the capacity of the testator to make a will requires that he know his property and the objects of his bounty; but it is not necessary that he know every item of his property or the value of his estate. It is sufficient if he knows of what his property consists and the persons to whom he desires to give it. Freeman v. Freeman, 71 W.Va. 303, 76 S.E. 657.

That testator's will was duly and properly executed, in accordance with the statutes of this State, appears clearly from the testimony of the two attesting witnesses, Dr. I. W. Taylor and Charles J. Moore of Huntington. These witnesses testified that the will under appraisement was formally executed. For some reason, which this Court cannot determine from the record, the attesting witness Moore did not...