Riddell v. Johnson's Ex'r

• Decision Date: 15 April 1875
• Citation: 67 Va. 152
• Court: Virginia Supreme Court
• Parties: RIDDELL & als. v. JOHNSON'S ex'or & als.

67 Va. 152

RIDDELL & als. v. JOHNSON'S ex'or & als.

Supreme Court of Appeals of Virginia.

April 15, 1875

1. A bequest in favor of an attorney who writes the will is not necessarily invalid.

2. The onus probandi lies in every case, upon the party propounding a will; and he must satisfy the conscience of the court that the instrument so propounded is the last will of a free and capable testator.

3. If a party writes or prepares a will under which he takes a benefit, that is a circumstance which ought generally to excite the suspicion of the court, and calls upon it to be vigilant and jealous in examining the evidence in support of the instrument; in favor of which it ought not to pronounce unless the suspicion is removed, and it is judicially satisfied that the paper propounded does express the true will of the deceased.

4. J was an unmarried man with a large property, having a large amount in bonds. B had been his counsel for years, in whom J had great confidence, and for whom he had a strong regard. In February 1867 B wrote J's will, in which he gave the most of his real estate to a number of his illegitimate children who were coloured persons. He then did not dispose of his bonds; which were in B's hands for collection. In June following J sent for B to write a codicil to his will, and after some previous provisions as to real estate among the same parties, and providing for the payment of his debts and expenses of administration, and any orders he might draw upon B in his lifetime out of the collections from the bonds, he gave whatever remained of these bonds in the hands of B at J's death, to B absolutely. J had a number of next of kin, and among them two sisters, to none of whom did he leave anything. It being clearly proved that J was entirely competent to make a will; that he dictated the bequest in favor of B without any suggestion from B or any other person and repeated that it was read to him, and he clearly understood it, and intended it to be as it was written: and it appearing further that he had been on bad terms with his family for years, and had expressed more than once his determination that none of them should have any of his estate; the bequest to B was held to be a valid bequest.

This was a suit in equity in the Circuit court of Appomattox county, brought in September 1871, by Richard Johnson and many others, heirs at law and next of kin of John H. Johnson deceased, against Albert Thornhill, his executor, Thomas S Bocock and others, to set aside the last clause of a codicil to the will of the said John H. Johnson, deceased. The court made an order in the cause directing an issue devisavit vel non to be tried at its own bar, in which Thornhill the executor and Thomas S. Bocock, the legatee in the said clause of the codicil, should be plaintiffs, and the plaintiffs in the cause should be defendants.

On the trial of the issue Albert Thornhill, the executor, was offered as a witness to support the will, security having been given for the payment of the costs; and he was objected to by the defendants in the issue, as incompetent on the ground that he was one of the plaintiffs, named as executor and qualified as such, and also interested in the suit. But the court overruled the objection and admitted the witness and the defendants excepted.

In the progress of the trial the defendants proposed to introduce James Gooding as a witness. His wife was one of the heirs at law of the testator, and they were plaintiffs in the suit but they had executed an assignment of all their interest in the estate. The plaintiffs in the issue objected to him as a witness, on the grounds that he and his wife were parties and he was liable for costs: and the court excluded him: and the defendants excepted.

After the evidence had been concluded th??aintiffs in the issue moved the court to give to the jury the following instructions:

1. That the paper mentioned in the issue, in order to be the will of the testator, John H. Johnson, must be proved to have been executed by him when he was of sound mind, according to the formalities prescribed by the statute, to wit: Must be proved to have been signed by him in the presence of the subscribing witnesses, and to have been attested by them in his presence and in the presence of each other, all being present together; and the burden of proving this is upon the plaintiffs in the issue, Albert Thornhill and Thomas S. Bocock.

2. That the last clause of said paper, so far as it gives a beneficial interest to Thomas S. Bocock, must be regarded as a testamentary bequest, and its validity tested by the laws of testamentary bequests, and not by the law of contracts.

3. That if it be proved that Thomas S. Bocock, who wrote said paper, was at the time of such writing the attorney of John H. Johnson, and is himself a large beneficiary under its provisions, this raises a suspicion against it, and makes it the duty of the jury to be vigilant and jealous in examining the evidence in its support. But if the suspicion, which such fact ought generally to excite, be removed; and if it be proved that the said paper was prepared according to instructions freely and spontaneously given by the testator, and was distinctly read over to, and its purport understood by him after its preparation, then the jury may find that it is the true will of the testator; it being the law of the land that an attorney may take a benefit under the will of a client if no undue influence was exerted by him over the testator, and the will was not executed under any mistake or misapprehension.

4. That if it be proved to the satisfaction of the jury, that the said John H. Johnson, for a number of years of his life, extending down to the execution of said paper, entertained a feeling of aversion and dislike for his relations, who would by law be his next of kin and heirs-at-law, and had a fixed purpose not to give them any part of his estate, then this fact is sufficient to rebut any presumption against said paper, arising merely from the fact that none of said relations are made beneficiaries therein.

5. That unless the jury believe from the evidence that one or both of the propounders of the will, or somebody for him or them, induced the said Johnson to make said paper, or some provision thereof, by force, coercion, or by importunity which he (Johnson) could not resist, or procured the same by some other unfair means or practice, then the said paper cannot be held void on the ground of undue influence; it being the true interpretation of the law of wills that the influence to avoid a testamentary bequest must amount to force or coercion, and impose on the testator a provision not in accordance with his own free, unbiased will.

6. That neither sickness, old age, nor impaired intellect, even if the jury believe from the evidence that any one or all of them existed in this case, are sufficient to render void the provisions of said paper, or any of them; but if the jury also believe from the evidence that the testator at the time of executing the same " was capable of recollecting the property he was about to dispose of, the manner of distributing it, and the objects of his bounty," then they must find that he had legal capacity sufficient to make a valid disposition of his estate.

7. And finally, if the jury believe from the evidence, that the paper mentioned in the issue was signed and executed by the testator according to law, as set forth in the first instruction, that its several provisions were attested with the full consent of his will and understanding, uninfluenced by importunity and without any fraud practiced upon him by the propounders of the will, or either of them, or any other person, and that the testator had adequate testamentary capacity, then the said paper and all its provisions is the true will of said John H. Johnson, and it is the duty of the jury to find accordingly.

And the defendants in the issue moved the court to give to the jury the following instructions, to wit:

1. If the jury believe from the evidence, that on the 17th day of June 1867 Thomas S. Bocock was the sole professional adviser as an attorney at law of John H. Johnson, and had been such for some years prior to said time, and was on that day employed in his said capacity of attorney and professional adviser to prepare a codicil to the will of said Johnson, which will he had previously prepared for him on the 18th of February 1867, and did prepare the codicil to said will, which codicil is dated June 17, 1867, and was probated on the 9th day of August 1867, and that in the preparation of said codicil said Johnson had no aid from any other person than said Bocock, further than that Albert Thornhill, who is named as executor in the codicil, was present during its preparation, though not interfering in the matter beyond privately urging Bocock to write the bequest in his own favor when he saw Bocock hesitate to do it; and further, that when the preparation of the codicil was completed, and it was ready to be witnessed, William T. Pankey and James A. Agee, two neighbors, were called in to witness its execution, who read the codicil to him, and satisfied themselves that he understood it, and then duly attested it in his presence, and at his request then, although they believe that the decedent was competent to make a will, and did fully understand what he was about, and fully understand the contents of the codicil, and that the conduct of Bocock, the attorney, was fair, and his purposes honest, and that he did not designedly take, or conceive that he was taking, any advantage of his professional influence over his client, they must find that the bequest made under such circumstances to Bocock is contrary to the policy of the law...