Savage v. Bowen

• Decision Date: 02 February 1905
• Citation: 49 S.E. 668,103 Va. 540
• Parties: SAVAGE et al. v. BOWEN et al.
• Court: Virginia Supreme Court

49 S.E. 668

103 Va. 540

SAVAGE et al.

v.BOWEN et al.

Supreme Court of Appeals of Virginia.

Feb. 2, 1905.

CONTESTING OF WILL—PERSONS ENTITLED—ADMISSION OP EVIDENCE—DISCRETION OF COURT—ATTESTATION OF WILL.

1. The grantee of an heir of testator has such an interest in the controversy as entitles him to contest a will found and filed for probate after the grant, by which testator devised the land to the grantor's children.

2. The will by which testator devised land to the children of her son, S., not having been probated, S. took the land as heir, and afterward conveyed it to plaintiff. After the death of S. his wife filed the will for probate, and it was admitted on her evidence as attesting witness. Plaintiff then brought suit to set aside the will. Held, that for the purpose of affecting her credibility it could be shown by the wife of S. that she joined S. in the deed to plaintiff.

3. Allowing a witness to be recalled for the purpose of laying the foundation for impeachment by contradiction is within the discretion of the court.

4. It is within the discretion of the trial court to allow bank officers to testify as experts as to handwriting and the difference in inks used in writing and signing a paper.

5. In a suit to set aside a will the admission of evidence as to the enhanced value of the land affected is error.

6. Code 1887, § 2544 [Va. Code 1904, p. 1297], provides: no will shall be valid unless in writing signed by the testator, or by some other person in his presence, and by his direction, so as to make it manifest that the name is intended as a signature; and, unless it be wholly written by the testator, his signature shall be made or the will acknowledged by him in the presence of at least two competent witnesses, present at the same time, who shall subscribe to the will in the presence of testator. Held that, if the attesting witnesses each signed the will in the presence of testator and of the other, it was not necessary that testator expressly requested each witness to sign the same.

Appeal from Circuit Court, Mecklenburg County.

Action by E. T. Bowen and another, administrators of George L. Savage, deceased, against the children of George L. Savage. From a decree for plaintiffs, defendants appeal. Reversed.

R. T. Thorp, C. T. Baskerville, and Reekes & Goode, for appellants.

W. E. Holmes, A. L. Holladay, and E. P. Buford, for appellees.

HARRISON, J. Ann C. Savage, of Mecklenburg county, departed this life in July, 1883, leaving a will, whereby she devised her tract of land in that county to her grandchildren, who are the appellants here. This will was dated the 7th day of June, 1883, and was in the following words:

"In the name of God, Amen. After the Bowen debt becomes due and is settled, then I give to G. L. Savage's children my tract of land on which he, Bowen, has a deed; it contains sixty acres more or less. I want Geog's children to have my land and its benefits: this is my wish and will."

Then follows the signature of the testatrix and those of two attesting witnesses, namely, N. C. Bugg and T. A. Savage.

On the 20th day of January, 1902, the will, upon the testimony of the subscribing witnesses thereto, was admitted to probate in the county court of Mecklenburg county.

In March, 1902, E. T. Bowen and B. E. Cogbill, administrator of George L. Savage, deceased, who are the appellees here, filed their bill in the circuit court of Mecklenburg county, in which they allege that Ann C. Savage died intestate, leaving surviving her George L. Savage as her only child and heir at law, and that upon her death the tract of land mentioned in the alleged will descended to him as her sole heir at law and next of kin; that after the death of his mother George L. Savage and his wife had sold and conveyed the land to the complainant Bowen by deed with general warranty dated December 4, 1890, and that he is now the owner of the same, as will appear from such deed, duly executed, recorded, and filed with the bill as a part thereof; that the estate of George L. Savage Is interested in the matter of this alleged will by reason of his general warranty in the said deed to the complainant Bowen.' They further allege that the paper in question, admitted to probate in the county of Mecklenburg, is not the true last will and testament of Ann C. Savage, and that, in view of their interest in the land passing by such pretended will, they desire to impeach the same and have it set aside. The grandchildren of Ann C. Savage, who are the children of George L. Savage, deceased, are made parties defendant; and the prayer of the bill is that the alleged will may be declared null and void, and the complainants granted all the relief provided for under section 2544 of the Code of 1887 [Va. Code 1904, p. 1297], and such other further and general relief as the nature of their case may require.

The defendants demurred to and answered the bill, denying its material allegations, and insisting that the complainants had no interest in the estate of Ann C. Savage or the probate of her will, and further insisting that the controverted paper was the true last will and testament of Ann C. Savage.

The demurrer having been overruled, a jury was impaneled to try the following issue: "Whether any, and, if any, how much, of what was offered for probate at the January term, 1902, of the county court of Mecklenburg county, a copy of which, marked '1, ' is filed with the plaintiffs' bill, is the last true will and testament of said Ann C. Savage." Upon this issue devisavit vel non the jury found for the contestants that the paper in question was not the true last will and testament of Ann C. Savage.

A motion to set aside the verdict was overruled, and the decree appealed from entered, adopting and approving the finding of the jury.

The demurrer was properly overruled. The allegations of the bill show such an in-terest in the subject-matter as entitles the appellees to impeach the will. Controversies of this character usually arise between persons claiming as heirs at law on the one hand and as devisees under the contested will on the other. George L. Savage, as heir of Ann C. Savage, would have had the right to impeach the will, and no reason is perceived why those claiming under and through him are not entitled to his rights in that respect.

The second assignment of error is that the court erred in admitting improper testimony.

Without referring in detail to the several bills of exceptions embracing these objections, we are of opinion that there was no error in proving by the witness T. A. Savage the deed from George L. Savage and wife to the complainant, E. T. Bowen, filed with the bill, and that the witness T. A. Savage had united with her husband, George L. Savage, in this deed conveying the land in question to Bowen. This evidence was admitted solely for the purpose of affecting the credibility of the witness T. A. Savage, who was one of the attesting witnesses in the will; and the contestants had the right to ask any question which tended to test the accuracy, veracity, or credibility of the witness. Va., etc., Wheel Co. v. Chalkley, 98 Va. 62, 34 S. E. 976.

We are further of opinion that there was no error in allowing the witness A. W. Bracey to be recalled for the purpose of laying the foundation to contradict him, and afterwards permitting the introduction of witnesses to contradict him. The examination of witnesses lies chiefly in the discretion of the trial court, and its exercise is rarely, if ever, to be controlled by an appellate court Much latitude of discretion should be allowed the trial court in the matter of recalling witnesses, and its action will not be reversed except for palpable error. Burke v. Shaver, 92 Va. 345, 23 S. E. 749.

We are further of opinion that there was no error in admitting the testimony of the two bank officers and the clerk of the circuit court as expert witnesses. These...