Thompson v. Updegraff

• Decision Date: 31 August 1869
• Citation: 3 W.Va. 629
• Parties: George W. Thompson, el al. v. Josiaii D. Updegraff, et al.August Terra, 1869.
• Court: West Virginia Supreme Court

3 W.Va. 629

George W. Thompson, el al.

v. Josiaii D. Updegraff, et al.August Term, 1869.

Supreme Court of Appeals of West Virginia.

1. On the trial of an issue to try the validity of a will, the contestants, who were defendants in the issue, were permitted to prove that the testator said, after the will in controversy was made, that one of the devisees, who was a plaintiff, did not want him to give certain other parties, children of a deceased son of the testator, anything, which evidence was stated to be for the purpose of proving the declaration of the devisee. The court below held that the declarations of any of the plaintiffs in the issue were proper evidence to be offered. Held:

1. That the evidence was improperly admitted for the purpose stated,

being hearsay in its character.

2. That the declarations of the testator were admissible for the purpose. of showing the state and the condition and operations of the mind of the testator at the time he made the will, and for no other pur-pose; and to lay the foundation of other and more direct testimony showing that improper influences were exerted on him.

2. On a like trial, the plaintiffs, who were the propoundersof the will, proved that the testator had executed a codicil on the 25th day of January, 1864, which was in evidence before the jury, in which he stated that lie had theretofore made a will and a codicil thereto relating to a bequest to a negro servant of certain stock, and revoked the bequest, and gave the stock to another; and for the purpose of explaining in this codicil the reference made therein, to the bequest to the negro servant, the plaintifts were permitted to prove by a witness, that after the date of the will in controversy, the testator in the presence of the witness destroyed, by burning, a previous will, and another paper not described by the witness. The plaintiff then a?ked the witness to state what the testator then said in reference to the nature of the papers destroyed, which being objected to, the objection was sustained. Held:

That the plantiffs having proved the destruction of the previous will and codicil referred to in the codicil of January 25th, 1864, as it was competent for them to do, and having without objection, proved the destruction of another paper, they had proved an act of the testator pertinent to the inquiry before the jury, and were entitled to give in evidence the declarations of the testator made at the time of the act as a part of the res gesta:, to go to the jury to be considered by them for what they were worth in their estimation.

3. A party left the court room during a trial and proceeded with dispatch about three squares in the city of W., to procure the attendance of a female witness, who was stopping at a hotel and was indisposed; when he returned the evidence was closed, and he asked, after verdict, a new trial upon the ground of surprise. It is held that inasmuch as it does not appear that the counsel for the party asked the court to wait for his return, or stated to the court that they desired to offer other evidence, nor, but that the evidence was closed by consent of his counsel, that the matter thus set up shows no ground for a new trial.

4. A witness testifies that a juror, on the second day of a trial, told him, at

recess at noon, that "Mr. T.," one of the parties to the trial, "would lose the trial." This the juror denies in his testimony. Another witness testifies that the juror, some months before the trial, said in a conversation, that "they are going to break the Steenrod will;" that he thought it was right to break it; that they would break it for T. had drawn it himself; that he had been informed that Mrs. T., (daughter of the testator and wife of T.) had informed her father how to make the will, and that they would be able to prove that T. had drawn the will. Another witness testifies that a few months before the trial, the juror said to witness, "it was no use for T. to sue for he would get beat; it was not Steenrod's will, it was Mr. T.'s will." The juror testifies that he does not remember any of these conversations, though he might have had them, as the case was considerably talked of; that he had not made up or expressed an opinion before or at the time he was sworn as a juror, he knew nothing about the case that he could put confidence in until he heard the testimony. That he felt no bias at the time of the trial against the plaintiffs. Held:

1. That to disqualify a juror an opinion must be deliberate and de-

cided.

2. That the juror was not disqualified.

Daniel Steenrod, of Ohio county, departed this life in April 1864. At the May term, following, a paper, purporting to be his last will and testament, with four codicils thereto attached, was produced in the circuit court of Ohio county, and, after being duly proved, was admitted to record. Elizabeth S. Thompson and George W. Steenrod were named executrix and executor in the will.

At the July rules, 1864, of the same court, Catherine 0. Updegraff, with Josiah T. Updegraff, her husband, Stephen 0. Feeney, Elizabeth Feeney, Mary Feeney, Emma Peeney, George S. F'eeney and Annie G. Feeney, an infant, by J. T. Updegraff, her next friend, filed a bill in the clerk's office of the circuit court of Ohio county, alleging that from great age and bodily infirmity the testator was not of sound mind and disposing memory, and had not mental capacity. The bill also alleged that Elizabeth S. Thompson, with George W. Thompson, her husband, Emma B. Carter, Johnson N. Camden, a trustee nominated in a codicil to hold the estates of Elizabeth S. Thompson and Emma B. Carter in trust, George W. Steenrod, Daniel Steenrod, Sarah E. Pennington, with Hiram Pennington, her husband, Emma G. Troll, with Conrad Troll, her husband, and Eliza J. Steenrod, had respectively entered into possession of the devises made to them in the will, and were seeking to obtain from Andrew White, administrator cum testamento anncxo, (Mrs. Thompson and Geo. W. Steenrod having declared and made known on the 12th day of May, 1864, in open court, that they wished Mr. White to administer, instead of themselves,) the legacies devised to themselves, and were confederating together to wrong the complainants. The bill prayed that the parties named as confederating might be required to answer it, and that a jury might be ordered to ascertain whether any, and if any, how much of what was offered for probate, was the last will of the testator; that the paper and codicils, purporting to be the last will, be rejected, and the certificate of probate be vacated; and that the estate of the testator be distributed and partitioned according to law, among his heirs at law.

The paper purporting to be the will, bore date the 22dof November, 1863, and the codicils respectively November 9th, 1862, January 25th, 1864, February 29th, 1864, and March 10th, 1864.

An issue was directed and a jury ordered to be empanneled. By election of the parties all of them became defendants to this issue, except George W. Thompson and wife, Emma B. Carter, and Johnson N. Camden, trustee, who were desiginated as plaintiffs.

Emma B. Carter filed her answer to the bill, denying many of its allegations, which it is not necessary to mention here, and expressly denying any failure of mental vigor or capacity in the testator at the time of making his will, or clown to the close of his life. Thompson and wife answered, adopting the answer of Emma B. Carter, and alleging it in substance and effect, to be correct.

The jury, on the 2d day of November, 1866, brought in a verdict, finding that the papers before them, purporting to be the last will and testament and codicils of Daniel Steenrod, were not, nor either of them, his testament and codicils. During the progress of the trial, the defendants to the issue offered to prove by a witness, that after the execution of the will the testator informed witness that the Thompsons, meaning George W. Thompson and his wife, the latter a devisee in the will, did not want him to give anything to the children of Edward Steenrod, a deceased son of the testator, which evidence was offered for the purpose of proving the declarations of the devisees. The plaintiffs objected to the admission of this testimony, but the court overruled the objection and decided that the declarations, of any of the plaintiffs in the issue, were proper evidence; whereupon the plaintiffs excepted.

After the propounders of the will and codicils had given evidence tending to prove the due execution thereof, and that the testator was, in all respects, competent, under the law, to make such will and codicils at the time the same were made, and after the will and codicils had been read to the jury, the propounders of the will and codicils, for the purpose of accounting for the reference in the codicil of the 25th day of January, 1864, to a bequest of ten shares of the stock of the North Western Bank of Virginia, to the woman Leann, offered to prove by a witness, Andrew White, that the testator and his daughter, Elizabeth S. Thompson, had called at the North Western Bank, in which the witness was then a clerk, and where the testator left his valuable papers, deposited in a box, after the time of the execution of the supposed will of the 22d of November, 1862; that the testator requested the witness to get his box of papers, and get from it, for him, a previous will he had deposited there, and also another paper described by him. That he found the paper and handed it, with the previous will, both of which were sealed up, to the testator; that the testator afterwards handed the will and the other paper back to the witness and told him to destroy them; that the witness did not see the contents' Of the paper, nor did he read them or know of his own knowledge what they were; that they were destroyed by being thrown into the fire. The propounders then asked witness to state what was said by testator at the time the papers...