Stewart v. Lyons

• Decision Date: 12 December 1903
• Citation: 54 W.Va. 665
• Court: West Virginia Supreme Court
• Parties: Stewart v. Lyons

54 W.Va. 665

Stewart

v.Lyons

Supreme Court of Appeals of West Virginia.

Submitted June 1.6, 1003

Decided December 12, 1903.

1. Winn Contest.

In a contest at law over a will either the proponent or the contestant may demur to the evidence. How the evidence is considered, (p. 667).

2. Will Witness.

Evidence of witnesses present at the execution of a will is entitled to peculiar weight, and especially is this the case with the attesting witnesses, (p. 675).

3. Will Testat or.

It is not necessary that a testator possesses high quality or strength of mind to make a valid will, no: that he then have as strong mind as he formerly had. The mind may be debilitated, the memory enfeebled, the understanding weak, the ebaraoter may be peculiar and eccentric, and he may even want capacity to transact many of the business affairs of life; still it is sufficient if he understands the nature of the business in which he is engaged when making a; will, has a recollection of the property he means to dispose of, the object or objects of his bounty, and how he wishes to dispose of his property, (p. 676).

4. Will-Capacity of Testator.

When incapacity of a testator is alleged against a will the vital question is as to his capacity of mind at the time when the will was made. (p. 677).

5. Will Testator Free Agency.

The influence resulting from attachment or love, or mere desire of gratifying the wishes of another, if free agency is not impaired, does not affect a will. The influence must amount to force or coercion destroying free agency; it must not he the influence of affection or attachment; it must not he more desire of gratifying the wishes of another, as that would be strong ground to support the will; further, there must be proof that it was ohtained by this coercion, by importunity that could not be resisted, that it was done merely for the sake of peace, so that the motive was tantamount to force and fear. (P. 677).

7. Will Testator.

The will of a person of competent testamentary mind and memory is not to be set aside on evidence tending to show only a possibility or suspicion of undue influence, (p. 67S).

8. Wilt,

Merely because a testator may be incompetent to safely transact the general business affairs of life does not render him incompetent to make a will. (p. 679).

9. Will.

The fact that a man and woman have had or still have unlawful sexual intercourse will not alone invalidate the will of one in favor of the other, or afford a presumption of undue influence. It is only a circumstance to be considered along with other matters, (p. 679).

Error to Circuit Court, Wetzel County. Action by Frank Stewart and others against Aaron Lyons and others. Judgment for plaintiffs, and defendants bring error.

Affirmed.

R. M. Ambler, J. A. Howard., and P. E. L. Snodgrass, for plaintiffs in error.

W. G. Snodgrass, T. P. Jacobs, and E. L. Robinson, for defendants in error.

Brannon, Judge:

A writing was admitted to probate by the clerk of the county court of Wetzel county as the will of Mary A. Brookover. When this probate came up for confirmation before the county court, Aaron Lyons and others contested such confirmation and denied the validity of the will, and upon trial of the contest the court held the paper not to be such will, and refused to confirm the probate made by the clerk. An appeal was taken by Houston Stewart, the sole devisee and legatee under the will, of the circuit court, and after two trials without decision by reason of hung juries a third trial was had before a jury, and the proponent demurred to the evidence of the contestants, and the court having compelled the contestants over their objection to join in the demurrer, gave judgment that the writing was the will of Mary A. Brookover, from which judgment the contestants have sued out a writ of error from this Court.

The first question presented for decision is based on the compulsion of the contestants to join in the demurrer to evidence. It is argued that he who bears the burden of proof cannot compel his adversary to join in demurrer to evidence, and that as the proponent of a will carries the burden of proof, there is error in the ruling of the court compelling the ccntcstants to unite in the demurrer. In West Virginia, the rule is not that a party on whom rests the burden cannot demur. Either party may demur to the evidence, unless the case be very clearly against the demurrant, or the court itself has reasonable doubt as to what facts should reasonably be inferred from the evidence. Hollandsworth v. Stone, 47 W. Va. 773; Bowman v. Dewing, 50 Id. 445. The evidence on both sides must be incorporated in the demurrer. Then comes the question of fie principle of the consideration of that evidence, and here the rule is properlv put in the opinion by Judge Dent in the latter case, that all the evidence on both sides must be considered as if there were a motion to set aside a verdict for the demurree, and that is, discard all evidence of the demurrant conflicting with that of the demurree, or the credit of which is impeached, and all inferences which do not fairly arise from his own evidence, and as admitting all that may be fairly and reasonably inferred from the evidence of the demurree. Shaver v. Edgell, 48 W.

GOB

Va. 502; Hogg's Plead. & Forms, 537; Lewis v. Railroad, 47 W. Va. 656; (Gnnn v. Railroad, 43 Id. p. 681; Garrett v. to26 Id. 345.

Therefore, there is no error in enforcing a joinder in the demurrer.

The next question is the sanity of the testatrix. Mary Lyons was born a poor country girl, will out apportunities for education, culture or refinement. "Chill penury repressed the living rage and froze the genial current of the soul." She worked as a domestic, as a menial, from childhood. When up in years somewhat, after hard years, she accepted the offer of marriage with an aged man, Jennings, who owned a home in the town of New Martinsville, so that she might have a home, or perhaps under promise that it would be given to her at her husband's death, as it was. She was compelled to and did support her aged husband and herself at the wash tub of the families of New Martinsville. After her husband's death she continued at the washtub or in the kitchens of other people. Some years later she married a very respectable man, Brookover, prominent in his county, who was twice its sheriff, and once a justice, and who owned a home in New Martinsville and some land near it, a few acres, which he devised to her. Thus she was owner of considerable property, not of great value when she so acquired it but which later came to be of considerable worth, but not a large estate. She was a dutiful, kindly wife to both husbands. She had only one child, which died when a few weeks old. She had brothers and sisters, the contestants of her will. Her aged mother lived with Mrs. Brookover, and while there secured a pension. The brothers and sisters claimed part of it from the mother, and Mrs. Brookover, proposing to fake care of her, denied them their right, and a bitter quarrel arose between her and her brothers and sisters about it, and they became perfectly estranged, not exchanging visits, and Mrs. Brookover forbade them entry to her house. She blamed one brother also for furnishing her mother tobacco. The feeling between them for years before her death was intense, as is admitted on both sides. Mrs. Brookover was warm and kindly to friends, but intensely resentful and bitter towards enemies, or those whom she regarded as such. We can say that if, for real or fancied cause, she took up a dislike or prejudice against a person, she never forgave or relented. She was illiterate, just able to read a little print. She was rude, sometimes coarse, ol'ten using profane language, especially when excited or angered. Sometimes, as a witness says, she seemed refined, but often otherwise. A witness says, she came in the last years of her life several times a day to his saloon and drank liquor. This does not seem well established; but certain it is that no set drink habit or inebriety is established. No one says she was a drunkard, or even seen drunk. She was, in the opinion of several witnesses, peculiar and eccentric, but not many features or exemplifications of this are shown. Lor instance: She owned a little dog, and when she moved from the house to which it was accustomed it refused to go with her. She manifested special attachment to it, going back to see it, taking it candy, and on one occasion killing a chicken and giving it the gravy to lick, and covering it up to keep it warm. When her husband, Brookoyer, died she sent to Sistersville to an undertaker saying she wanted a fine casket for him, refused to take one offered, wanted a silver one, saying she wanted "Pap" to be put away nicely, as he had been good to her, and she did not want a wood coffin that would let the water in. She wanted a silver one, the. witness thinking she meant an alluminum one. She refused to accept one he offered, and ordered him to get one regardless of cost, and he ordered a heavy steel one costing $190, and she was pleased with it. On one occasion she shoved about an acquaintance visiting her house and kicked him, and he caught her foot and threw her. The witness says he regarded that she did this in joke. Her husband, Brookover, had a life insurance policy, and upon his death she went to the agent to inquire about it, and learned (hat Brookover had got the money on it, when sic exclaimed: "The damned old son of a bitch, if I had known that T wouldn't have bought him an iron coffin. I would have bought him a chestnut coffin, so he could go through hell a-craekin." She was offered a good price for some property, but suspecting that the purchase was being made for a certain person she said she would sell, but she would see that person in hell before she would sell to him; she would not sell to "them sons of bitches." She became incensed at this family because in the great flood in the Ohio the water deluged her...