Snedeker v. Rulong

CourtSupreme Court of West Virginia
Writing for the CourtMILDER
Citation69 W.Va. 223,71 S.E. 180
PartiesSNEDEKER. v. RULONG.
Decision Date25 April 1911

69 W.Va. 223
71 S.E. 180

SNEDEKER.
v.
RULONG.

Supreme Court of Appeals of West Virginia.

April 25, 1911.


(Syllabus by the Court.)

1. Wills (§ 360*)—Contest—Irregularity— Waiver of Objections.

It is irregular for a contestant to institute contest proceedings before a will is offered for probate by some one desiring its probate; but if a proponent, after objecting, appears thereto, and offers evidence to establish the due execution of the will, and on appeal by the contestant, from the order or sentence of the county court, to the circuit court, again appears, and without objection there takes the affirmative of the issue, devisavit vel non, and there again offers the will for probate, he will in this court be treated as having waived his objection to the regularity of the proceedings begun in the county court.

[Ed. Note.—For other cases, see Wills, Cent. Dig. § 825; Dec. Dig. § 360.*]

2. Trial (§ 252*)—Instructions—Evidence to Support.

If there be evidence tending in some appreciable degree to support the theory of proposed instructions, it is not error to give such instructions to the jury, though the evidence be slight, or even insufficient to support a verdict based entirely on such theory.

[Ed. Note.—For other cases, see Trial, Cent. Dig. § 596-612; Dec. Dig. § 252.*]

3. Wills (§ 166*)—Validity—Undue Influence—Evidence.

Undue influence sufficient to overthrow a will will not be inferred from opportunity, suspicion, physical or even mental weakness, or from attachment or love for, or a desire to gratify the wishes of a beneficiary. It is necessary to show in addition that the free agency of the testator, at the time of the execution of the will, was overcome thereby.

[Ed. Note.—For other cases, see Wills, Cent. Dig. §§ 421-437; Dec. Dig. § 166.*]

4. Wills (§ 386*)—Validity—Conflicting Evidence—Review.

Where a will is offered for probate, as a holographic, and on an issue devisavit vel non, the evidence is conflicting on the question whether the will was wholly written by the testator, and signed by him, the verdict of the jury will not be set aside, unless shown to have been influenced by fraud, bias, prejudice or corruption, or some other undue influence.

[Ed. Note.—For other cases, see Wills, Cent. Dig. § 859; Dec. Dig. § 386.*]

Error to Circuit Court, Marshall County.

Proceeding by J. M. Snedeker to contest probate of a writing offered by J. M. Rulong as the last will and testament of Lula L. Conner, deceased. From an order of the county court admitting same to probate, Snedeker appealed to the circuit court, where judgment denying probate was pro-

[71 S.E. 181]

nounced, and Rulong brings error. Affirmed.

C. A. Showacre and D.-B. Evans, for plaintiff in error.

Martin Brown, for defendant in error.

MILDER, J. On appeal by Snedeker, contestant, to the circuit court, from so much of the order or sentence of the county court, as admitted to probate, as the last will and testament of Lula L. Conner, deceased, a paper writing, dated January 23, 1909, the jury upon the issue of devisavit vel non, found, that neither the writing, dated December 9, 190S, also involved therein, nor said writing of January 23, 1909, offered for probate, taken separately or together, constituted the true last will and testament of said decedent.

On this verdict the court below denied the motion of Rulong, proponent, and devisee, to enter judgment, non obstante veredicto, that said paper writing, dated January 23, 1909, was the true and last will and testament of said decedent; and also his motion to set aside the verdict of the jury and grant him a new trial. And on November 6, 1909, the court pronounced the judgment complained of, that neither the said writing of December 9. 1908, nor the said writing of January 23, 1909, separately or together, constituted the true last will and testament of said Dula L. Conner.

To this judgment, on the petition of Rulong, a writ of error was awarded, bringing the case here for review, for the errors assigned.

A preliminary point presented in the briefs, is that as no one who desired it had offered the alleged wills for probate in the county court, and as the proceedings there had been initiated by Snedeker, contestant, that court should...

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25 practice notes
  • Coleman v. Sopher, No. 23943.
    • United States
    • Supreme Court of West Virginia
    • November 20, 1997
    ...the evidence be slight, or even insufficient to support a verdict based entirely on such theory." Syllabus Point 2, Snedeker v. Rulong, 69 W.Va. 223, 71 S.E. 180 (1911).' Syllabus Point 4, Catlett v. MacQueen, 180 W.Va. 6, 375 S.E.2d 184 (1988)." Syllabus point 6, Wilt v. Buracker, 191 W.Va......
  • Wilt v. Buracker, No. 21708
    • United States
    • Supreme Court of West Virginia
    • May 31, 1994
    ...the evidence be slight, or even insufficient to support a verdict based entirely on such theory.' Syllabus Point 2, Snedecker v. Rulong, 69 W.Va. 223, 71 S.E. 180 (1911)." Syllabus Point 4, Catlett v. MacQueen, 180 W.Va. 6, 375 S.E.2d 184 (1988). 7. "Prejudgment interest, according to West ......
  • Craighead v. Norfolk and Western Ry. Co., No. 22946
    • United States
    • Supreme Court of West Virginia
    • July 5, 1996
    ...the evidence be slight, or even insufficient to support a verdict based entirely on such theory." Syllabus Point 2, Snedeker v. Rulong, 69 W.Va. 223, 71 S.E. 180 (1911).' Syllabus Point 4, Catlett v. MacQueen, 180 W.Va. 6, 375 S.E.2d 184 (1988)." Syllabus point 6, Wilt v. Buracker, 191 W.Va......
  • Wal-Mart Stores E., L.P. v. Ankrom, No. 19-0666
    • United States
    • Supreme Court of West Virginia
    • November 18, 2020
    ...the evidence be slight, or even insufficient to support a verdict based entirely on such theory.’ Syllabus Point 2, Snedeker v. Rulong, 69 W.Va. 223, 71 S.E. 180 (1911)." Syllabus Point 4, Catlett v. MacQueen, 180 W.Va. 6, 375 S.E.2d 184 (1988).’ Syllabus point 6, Wilt v. Buracker, 191 W.Va......
  • Request a trial to view additional results
25 cases
  • Coleman v. Sopher, No. 23943.
    • United States
    • Supreme Court of West Virginia
    • November 20, 1997
    ...the evidence be slight, or even insufficient to support a verdict based entirely on such theory." Syllabus Point 2, Snedeker v. Rulong, 69 W.Va. 223, 71 S.E. 180 (1911).' Syllabus Point 4, Catlett v. MacQueen, 180 W.Va. 6, 375 S.E.2d 184 (1988)." Syllabus point 6, Wilt v. Buracker, 191 W.Va......
  • Wilt v. Buracker, No. 21708
    • United States
    • Supreme Court of West Virginia
    • May 31, 1994
    ...the evidence be slight, or even insufficient to support a verdict based entirely on such theory.' Syllabus Point 2, Snedecker v. Rulong, 69 W.Va. 223, 71 S.E. 180 (1911)." Syllabus Point 4, Catlett v. MacQueen, 180 W.Va. 6, 375 S.E.2d 184 (1988). 7. "Prejudgment interest, according to West ......
  • Craighead v. Norfolk and Western Ry. Co., No. 22946
    • United States
    • Supreme Court of West Virginia
    • July 5, 1996
    ...the evidence be slight, or even insufficient to support a verdict based entirely on such theory." Syllabus Point 2, Snedeker v. Rulong, 69 W.Va. 223, 71 S.E. 180 (1911).' Syllabus Point 4, Catlett v. MacQueen, 180 W.Va. 6, 375 S.E.2d 184 (1988)." Syllabus point 6, Wilt v. Buracker, 191 W.Va......
  • Wal-Mart Stores E., L.P. v. Ankrom, No. 19-0666
    • United States
    • Supreme Court of West Virginia
    • November 18, 2020
    ...the evidence be slight, or even insufficient to support a verdict based entirely on such theory.’ Syllabus Point 2, Snedeker v. Rulong, 69 W.Va. 223, 71 S.E. 180 (1911)." Syllabus Point 4, Catlett v. MacQueen, 180 W.Va. 6, 375 S.E.2d 184 (1988).’ Syllabus point 6, Wilt v. Buracker, 191 W.Va......
  • Request a trial to view additional results

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