Snedeker v. Rulong
| Decision Date | 25 April 1911 |
| Citation | 71 S.E. 180,69 W.Va. 223 |
| Parties | SNEDEKER v. RULONG. |
| Court | West Virginia Supreme Court |
Submitted June 11, 1910.
Syllabus by the Court.
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.
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.
Undue influence suffici ent 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.
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.
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 pronounced, and Rulong brings error. Affirmed.
C. A Showacre and D. B. Evans, for plaintiff in error.
Martin Brown, for defendant in error.
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, 1908, 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 Lula 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 not have proceeded, over the objections of Rulong, to try the contest begun by Snedeker. Section 26, chapter 77, Code 1906, does not authorize the institution of such a contest, before the will has been offered for probate by some one desiring the probate thereof. But Rulong did not stand on his objection, either in the county court, or on appeal, in the circuit court. After his objection had been overruled by the county court, he took the affirmative, and offered evidence to prove the due execution of said paper writings, resulting in the order and sentence of that court, denying the probate of the paper of December 9, 1908, but admitting to probate the paper of January 23, 1909, as the true last will and testament of said testatrix.
In the circuit court, on appeal, no question was presented by proponent as to the regularity of the proceedings in the county court. In the circuit court the proceedings were altogether regular, resulting in the judgment now under review. There the proponent, without again questioning the regularity of the proceedings in the county court, again took the affirmative of establishing the due and proper executions of the testamentary papers, and there, after the verdict, moved the court, notwithstanding the verdict, to pronounce judgment that the said paper writing of January 23, 1909, is the true and last will and testament of said Lula L. Conner. We are of opinion, therefore, that Rulong must be regarded as having waived all objections to the irregularity of the proceedings in the county court.
But three other points of error are presented: First, the giving of contestant's instructions to the...
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