Rice v. Henderson

• Decision Date: 19 October 1954
• Docket Number: No. 10658,10658
• Citation: 83 S.E.2d 762,140 W.Va. 284
• Parties: Nellie RICE et al. v. Georgia L. HENDERSON et al.
• Court: West Virginia Supreme Court

Page 762

83 S.E.2d 762

140 W.Va. 284

Nellie RICE et al. v. Georgia L. HENDERSON et al.

No. 10658.

Supreme Court of Appeals of West Virginia.

Submitted Sept. 2, 1954.

Decided Oct. 19, 1954.

Syllabus by the Court.

1. Upon an issue devisavit vel non, questions of testamentary capacity, animus testandi, and undue influence, if raised by the evidence, are factual questions for jury determination.

2. Error in the admission of improper testimony, subject to cure by action of the court, is cured, though such testimony is not excluded nor the jury admonished to disregard it until the day following the admission of such testimony, since the jury is presumed to follow the instructions of the court.

3. It is essential to constitute a valid will that the instrument sought to be so declared was executed animus testandi, that is, that the maker intended such instrument as an actual disposition of his property to take effect after his death.

George S. Wallace and George S. Wallace, Jr., Huntington, for appellants.

Duncan W. Daugherty and Duncan W. Daugherty, Jr., Huntington, for appellees.

BROWNING, Judge.

Robert Floyd Ross, a bachelor, died June 26, 1949, leaving among his effects a paper in the following words and figures:

'Huntington, 3, W.Va.

'12-1-45

'To All Whom it May Concern.

'In case of my death please give my insurance and my money and everything that belongs to me to Georgia L. Henderson, for she is the only one on this earth that I want to have it.

'Robert Floyd Ross.'

This paper was enclosed in an envelope, on the back of which is inscribed:

'Robert Floyd Ross.

'Not to be opened until

'My Death.

'To all Whom

'It May Concern.'

Following the admission of such paper to probate, the plaintiffs herein, the brother and sister of decedent, brought this suit in equity against the defendants, Georgia L. Henderson and William H. Daniel, Administrator, c.t.a. of decedent's estate, and, on motion of the defendants, filed a bill of particulars asserting, in substance, that decedent did not sign the paper; that, if he did so, he lacked testamentary intent; that he lacked testamentary capacity; and that Georgia L. Henderson had procured such writing by fraud, undue influence or coercion.

The case was tried to a jury on the issue of devisavit vel non, and the jury found that such paper was not the last true will and testament of Robert Floyd Ross. A motion to set aside the verdict was overruled, and the court entered judgment thereon, from which this Court granted an appeal on January 25, 1954.

The errors relied upon by the proponents are: (1) The verdict is contrary to the law and the evidence; (2) the court erred in not construing the paper writing in question, and instructing the jury of its legal effect, leaving to the jury only the questions: (a) whether it was in the handwriting of decedent and signed by him; (b) whether at the time of the execution of the paper decedent had sufficient mental capacity to execute a will; (c) and if he had such capacity, was his execution thereof induced by the undue influence of the proponent, Georgia L. Henderson; (3) the refusal of proponents' Instructions Nos. 3, 9, 11, 12 and 13, and the giving of contestants' Instructions Nos. 5, 6, 7, 8 and 9; and (4) the admission of testimony by witnesses concerning the marital status of the proponent, Georgia L. Henderson, even though the court sustained proponents' motion to strike such testimony on the day following its introduction, and instructed the jury to disregard it.

The proponents of the will offered the testimony of a bank teller and others who, though unfamiliar with decedent's handwriting, were familiar with the signature as being that of decedent. There was no evidence offered indicating that the handwriting differed from the signature, and it must be assumed that the entire instrument was executed by the decedent in his own hand.

To comply with the burden of proving the testamentary capacity of the testator at the time of the execution of the alleged will, that burden being upon the proponents, they introduced several witnesses who had known the decedent between January 1944 and the date of his death, June 26, 1949, who stated that he had such mental capacity. At least two stated that he had informed them that he wanted 'Georgia', meaning Georgia L. Henderson, to have his property when he died, and did not want his brother or sister to have any of it. The proponents then rested, the court refused to direct a verdict on motion of the contestants, and the latter proceeded to offer testimony upon the issue of undue influence, the burden of so showing being upon the party who alleges the exercise of such influence upon an issue devisavit vel non. The proponents offered several witnesses in rebuttal.

The record discloses that Robert Floyd Ross was approximately fifty-one years of age at the time of his death in 1949. From the time he was discharged from service, shortly after World War I, until he secured employment at the Chesapeake & Ohio Railway Company shops in Huntington on January 18, 1944, he lived with his sister, the contestant Nellie Rice, as a permanent guest, but temporarily visited other relatives and other people in Cabell County, and in the states of Ohio and Kentucky. There is little, if any, evidence indicating that Ross ever held a steady job during this period of time, and witnesses for the contestants of the will use such phrases as 'not normal', 'never seemed like a stable minded man', 'seemed in a fog', 'all mixed up' and 'didn't believe he knew what he was doing', in describing the decedent Ross. The witness Picklesimer was permitted to testify that Ross stayed with him at Greenup, Kentucky, for a period of approximately eight months 'off and on' during the year 1934, and that Ross spent considerable time using a mineral instrument in an effort to 'hunt minerals, pots of money, and so forth'. The witness stated that he would dig a hole on one side of a tree, go to Huntington to consult some one when he found nothing, and would return to dig a hole elsewhere near the tree. Witness also stated that Ross told him on one occasion that 'I am bewitched and I can't do nothing until I get shut of this witch.' Other witnesses testified to the eccentricity of decedent, but only Basil Vernatter, Inez Rice, daughter-in-law of the plaintiff Nellie Rice, and contestants would state specifically that they did not believe Ross mentally capable of executing a will on December 1, 1945. Neither of these three witnesses could recall seeing him on that exact date, however, and their association with him immediately prior to that time was obviously of a very casual nature.

For the proponents, upon the question of mental capacity, several witnesses, including Mr. and Mrs. Gothard, with whom Ross was living at the time he executed the alleged will, testified that he was mentally capable, using such phrases as 'he was a man of firm will', 'he was a pretty shrewd man', in describing the decedent. It was shown also, without contradiction, that Ross received an injury while employed at the shops of the railway company on February 14, 1948, resulting in the loss of a leg, for which disability he received a substantial amount of money in a lump sum. The record does not disclose the exact amount. Thereafter, he purchased a house and lot on Artisan Avenue in the City of Huntington, for which he paid cash. After living at that address for some time, he communicated with his real estate agent, informed him that the neighborhood was too noisy, and bought a more suitable place on 7th Avenue in the same city. He maintained a bank account at the Twentieth Street Bank in Huntington, and, as far as the evidence shows, conducted his financial affairs wisely, with the exception of a loan which he made to a former fellow employee at the shops, which was never repaid, in the sum of $180. This man testified for the contestants of the will upon the question of the decedent's mental capacity.

The evidence offered by contestants as to undue influence is vague and inconclusive. In the statement of particulars, it is stated that they expected to prove that Georgia L. Henderson practiced witchery and fortunetelling on Ross, by the use of such practices and trickery poisoned his mind against his legal heirs, and persuaded him to believe that the 'spirits' dictated that he should give his property to her. Counsel for contestants indicated by questioning of witnesses and statements during the trial that Ross was influenced to bequeath and devise his property to Georgia L. Henderson by her promise, later broken, to marry him. There was no evidence whatever to sustain the latter contention, and, while there was some testimony indicating that the decedent gave some credence to witchcraft and fortunetelling, there was no evidence to connect Georgia L. Henderson with any such practices upon the decedent, although there was testimony to the effect that Ross had made the statement that she 'could tell him when he was going to be sick.' The contestants lay considerable stress upon the fact that decedent, during his last sickness, kept under his bed and regularly partook thereof, a container filled with a concoction known as 'seven bark.' The witness Homer King stated that seven bark was an herb which he had procured on a nearby mountain for Ross, and that the 'medicine' made from it was not only harmless, but very healing indeed. He stated that 'seven bark is to take the swelling out of you. You take and you drink it by the glass. It won't hurt you. I have drunk many of it.'

The verdict of the jury, to the effect that the paper writing of December 1, 1945, was not the last will of Robert Floyd Ross, does not, and is not required to indicate upon which of the factual questions it was based. It must be treated as if the jury found against the proponents of the will upon all questions properly presented to it. They could have found against the...