Ritz v. Kingdon

• Decision Date: 18 December 1953
• Docket Number: No. 10551,10551
• Citation: 79 S.E.2d 123,139 W.Va. 189
• Parties: RITZ et al. v. KINGDON et al.
• Court: West Virginia Supreme Court

Page 123

79 S.E.2d 123

139 W.Va. 189

RITZ et al. v. KINGDON et al.

No. 10551.

Supreme Court of Appeals of West Virginia.

Submitted Sept. 29, 1953.

Decided Dec. 18, 1953.

Syllabus by the Court.

1. In the selection of a jury in a criminal case or a civil action a trial court is vested with a sound discretion and its action in excusing a qualified juror and in excluding a qualified juror upon challenge for cause will not be disturbed by an appellate court unless it appears that the complaining party was prejudiced by the removal of such jurors from the panel.

2. The exclusion of a juror for insufficient cause is not reversible error if the twelve jurors who are finally chosen to try the case are legally qualified.

3. Alleged errors in the admission or the rejection of evidence, to which objection has been made in a trial court, are waived unless such evidence is specifically set forth as a ground of a motion to set aside the verdict and grant a new trial or unless it is incorporated in a special bill of exceptions which shows the evidence and the ruling of the court in admitting or rejecting it.

4. To the extent that the holding and statements in the opinions in Hinton Milling Company v. New River Milling Company, 78 W.Va. 314 ; Bond v. National Fire Insurance Company, 77 W.Va. 736 ; Walters v. Appalachian Power Company, 75 W.Va. 676 ; Parr v. Howell, 74 W.Va. 413 ; Wright v. Ridgely, 67 W.Va. 319 ; Fuller v. Margaret Mining Company, 64 W.Va. 437 ; McClanahan v. Caul, 63 W.Va. 418 ; Williams & Davisson Company v. Ferguson Contracting Company, 60 W.Va. 428 ; Foley v. City of Huntington, 51 W.Va. 396 ; Bodkin v. Arnold, 48 W.Va. 108 ; Kay v. Glade Creek & Raleigh Railroad Company, 47 W.Va. 467 ; and McDodrill v. Pardee and Curtin Lumber Company, 40 W.Va. 564 , are inconsistent or in conflict with the holding in point 3 of the syllabus in this case such holding is overruled and such statements are disapproved.

5. 'Failure to make timely and proper objection to remarks of counsel made in the presence of the jruy, during the trial of a case, constitutes a waiver of the right to raise the question thereafter either in the trial court or in the appellate court.' Point 6, Syllabus, Yuncke v. Welker, 128 W.Va. 299 .

6. Upon an issue devisavit vel non, under Section 11, Article 5, Chapter 41, Code, 1931, as distinguished from an issue out of chancery, the verdict of a jury is not merely advisory but has all the characteristics of a verdict rendered in an action at law; and, if the verdict of the jury is sustained by the evidence and no error of law occurs upon the trial, such verdict is binding upon the trial chancellor.

7. Upon the trial of an issue devisavit vel non in a suit to impeach a will the burden of proving the testamentary capacity of the testator at the time of the execution of the will is upon the proponent of the will.

8. The time to be considered in determining the capacity of the testator to make a will is the time at which the will was executed.

9. Old age and eccentricity incident to it are not of themselves sufficient to establish lack of mental capacity of a testator to make a will.

10. Mere infirmity of mind and body due to illness is not alone sufficient to establish mental incapacity of a testator to make a will.

11. 'It is not necessary that a person should possess the highest qualities of mind in order to make a will nor that he should have the same strength of mind which he may formerly have had; the mind may be in some degree debilitated, the memory may be enfeebled, the understanding may be weak, the character may be eccentric, and he may even want capacity to transact many of the ordinary business affairs of life; but it is sufficient, if he understand the nature of the business in which he is engaged, has a recollection of the property which he means to dispose of, the objects of his bounty, and the manner in which he wishes to distribute it among them.' Point 2, Syllabus, Nicholas v. Kershner, 20 W.Va. 251.

12. 'Where legal capacity is shown, and the testator acts freely, the validity of the will cannot be impeached, however unreasonable, imprudent, or unaccountable it may seem to the jury or to others.' Point 3, Syllabus, Nicholas v. Kershner, 20 W.Va. 251.

13. In a suit to impeach a will the burden of proving undue influence is upon the party who alleges the exercise of such influence.

14. Undue influence, to invalidate a will, must be such influence as destroys the free agency of the testator and, in legal effect, amounts to force and coercion; but such force and coercion need not be physical or applied at any particular time.

15. Undue influence which will invalidate a will is never presumed but must be established by proof which, however, may be either direct or circumstantial.

16. Proof of opportunity for, or possibility or suspicion of, the exercise of undue influence is not alone sufficient to establish undue influence.

17. Influence which arises from acts of kindness and attention to the testator, from attachment or love, from persuasion or entreaty, or from the mere desire to gratify the wishes of another, if free agency is not impaired, does not constitute, and is not alone sufficient to establish, undue influence.

18. Proof of undue influence which will invalidate a will must be consistent with the exercise of such influence and inconsistent with the absence of such influence.

19. To warrant a finding of undue influence which is based on circumstantial evidence the established facts must be inconsistent with any theory other than that of undue influence.

20. Mere suspicion, conjecture, possibility or guess that undue influence has been exercised is not sufficient to support a verdict which impeaches a will on the ground of undue influence.

21. 'A jury will not be permitted to base its findings of fact upon conjecture or speculation.' Point 1, Syllabus, Oates v Continental Insurance Company, 137 W.Va. ---- .

22. When on motion by a party for a directed verdict in the trial of an issue devisavit vel non in a suit to impeach a will it appears that the court, upon the evidence presented, would be required to set aside a verdict in favor of the opposite party, the motion to direct a verdict should be sustained.

23. Upon a trial by a jury of an issue devisavit vel non the court may, when proper, as in an action at law, direct or set aside a verdict.

24. A verdict which is without evidence to support it or is against the clear preponderance of conflicting evidence will, on proper motion, be set aside by the court.

Richardson, Hudgins & Hancock, Bluefield, for appellants.

Sanders & Smoot, Bluefield, Burton & Griffith, Princeton, Katz & Katz, Bluefield, for appellees.

HAYMOND, President.

This suit in equity was instituted in the Circuit Court of Mercer County in October, 1951, by Stuart L. Ritz, Jean Ritz Marshall, Kathryn Johnson Hurd, Nancy Johnson Sigford, Rose Johnson Robinson and Jean Johnson Crouch, against Alva Ritz kingdon, individually, Alva Ritz Kingdon, Executrix of the last will and testament of James M. Ritz, deceased, and Charles L. Ritz, to impeach a testamentary writing dated July 10, 1950, and admitted to probate in the office of the Clerk of the County Court of Mercer County on January 2, 1951, as the last will and testament of James M. Ritz, who died in Bluefield on December 29, 1950. The plaintiff Stuart L. Ritz is a brother, and the other plaintiffs are nieces of James M. Ritz. The defendant Alva Ritz Kingdon is a sister and the defendant Charles L. Ritz is a brother of the decedent. By their bill of complaint and amended and supplemental bill of complaint the plaintiffs attack the written instrument dated July 10, 1950, probated January 2, 1951, and an earlier written instrument signed by James M. Ritz and dated May 2, 1950, on the ground that at the time of the execution of each writing James M. Ritz was mentally incompetent to execute a valid will and that each writing was procured and obtained by undue influence exerted upon him by the defendant Alva Ritz Kingdon who is named as the principal beneficiary in each instrument. By their answer and amended answer the defendants denied the material allegations of the bills of complaint and a trial by a jury of an issue devisavit vel non as to each written instrument having been demanded by the plaintiffs, under Section 11, Article 5, Chapter 41, Code, 1931, the jury by separate verdicts rendered June 12, 1952, found that neither writing was the last will and testament of James M. Ritz.

During the trial, which began May 27, 1952, and ended on June 12, 1952, the circuit court overruled a motion made by the defendants at the conclusion of the evidence introduced by the plaintiffs to direct a verdict for the defendants and a similar motion made by the defendants at the conclusion of all the evidence introduced by the respective parties. The court also refused to give Instruction No. 1, offered by the defendants, which would have directed the jury to return a verdict that the paper writing dated July 10, 1950, and probated January 2, 1951, was the last will and testament of James M. Ritz. At the instance of the defendants and over the objection of the plaintiffs, the court gave an instruction which told the jury that James M. Ritz was mentally competent to make a will when he executed the instrument dated July 10, 1950.

By decree entered October 16, 1952, the circuit court, a special judge sitting in lieu of the regular judge of that court, overruled the motion of the defendants to set aside the verdicts and grant a new trial, held each writing not to be the last will and testament of James M. Ritz, set each of them aside as null and void, and awarded costs in favor of the plaintiffs against the defendants Alva Ritz Kingdon and Charles L. Ritz. From that decree this Court granted this appeal upon the petition of the defendants.

The instrument dated July 10, 1950, signed by ...