Thornton v. Thornton's Ex'rs

• Decision Date: 15 January 1925
• Citation: 126 S.E. 69
• Parties: THORNTON v. THORNTON'S EX'RS et al
• Court: Virginia Supreme Court

126 S.E. 69

THORNTON

v.THORNTON'S EX'RS et al

Supreme Court of Appeals of Virginia.

Jan15, 1925.

Error to Circuit Court, Fauquier County.

Will contest proceeding between James Taylor Thornton and Thornton's executors and others. From a decree sustaining the contest of Thomas Pringle Thornton to a codicil of the will of Thomas Thornton, deceased, James Taylor Thornton brings error. Reversed and rendered.

R, A. McIntyre, of Warrenton, Jno. S. Barbour, of Fairfax, and W. II. Robertson, of Warrenton, for plaintiff in error.

J. Donald Richards, of Warrenton, Burnett Miller, of Culpeper, and A. O. Weedon, of Warrenton, for defendants in error.

PRENTIS, J. This is a controversy over the third codicil to the will of Thomas Thornton, deceased, dated December 1, 1919. He had made his will March 19, 1915. He thereby gave his entire estate, after the death of his wife, subject to certain legacies, to his son, Thomas Pringle Thornton (called Pringle) for life, upon condition that if Pringle should die without heirs of his body, his interest should pass to "my grandson, Thomas Thornton, son of James Taylor Thornton." He also provided that after the death of Pringle it should go to Thomas Thornton, the son of James Taylor Thornton (called Taylor), "provided he should be the longest liver and my son Thomas Pringle should die without heirs of his body; and should my son Thomas Pringle survive my said grandson, and die without issue of his body, then I direct that said property be divided among my heirs at law as if I had died intestate, unless said grandson should have heirs of his body, in which event said property shall pass upon the death of my son Thomas Pringle without heirs, to such heirs of my said grandson."

When the third codicil was executed in 1919, and at the time of his death, December 28, 1920, when he was about 88 years old, his wife was dead and he left surviving him five sons, Andrew, Benjamin, "Pringle, " William, and "Taylor, " the oldest of whom was more than 60 years of age, and the youngest, Taylor, about 52. His only grandchildren were a daughter of his son, Andrew, who did not live in Virginia, who had never visited him, and the four children of Taylor, of whom the oldest, Thomas, is mentioned both in the will and codicil. Benjamin lived in Indiana and had visited his father occasionally. William was a Pullman car conductor and lived in Washington, D. C.

Pringle is described as weak mentally and physically, and he alone of the 5 sons had remained with his father, working on the farm, and evidently had been his peculiar care. After the death of the testator's wife, Pringle contracted a marriage which was not entirely pleasing to his father, and thereafter lived with his wife at his father's home. Not long before this marriage, March 31, 1917, the testator executed the first codicil, the pertinent part of which is in this language:

"I desire the property devised and bequeathed to my son, Thomas Pringle Thornton in the sixth clause of my will to pass to my son James Taylor Thornton for life should he be the longest liver, and then to my grandson Thomas Thorton in remainder in fee."

So that this codicil shows an increasing interest in Taylor. The testator and the wifeof Pringle were at times uncongenial. Perhaps, reading between the lines, the testator had been so accustomed to Pringle's incompetency and subserviency that he was restive under the perhaps naturally Independent spirit of his wife. At any rate, and without undertaking to place the fault, there were many misunderstandings after the marriage, the business relations of the father and son assumed a more definite form, and first the farm was rented to Pringle for one-third of the proceeds and thereafter for one-half thereof. These misunderstandings led the testator to leave his home in Fauquier and go to live with his son, Taylor, in Prince William county. There is testimony to the effect that Pringle merely took him there and left him September 2, 1919, and also to the effect that he went there intending to make a visit of a few days' duration and was expected to return promptly. At any rate the first written contract, dated September 10, 1919, was thereupon executed leasing the farm to Pringle for one year for one-half of the crops, the father reserving one room in the house whenever he desired to occupy it. This contract also constituted his friend and neighbor, H. V. Glascock, his agent to advise and deal with Pringle. Shortly thereafter, December, 1919, while living in Taylor's home in Prince William county, he visited R. A. McIntyre, a prominent attorney in good standing at Warrenton, who had drawn both the will and previous codicil and who had them for safe-keeping, and there executed the second codicil to his will, which gives rise to this controversy. That codicil reads thus:

"I give all of the property named and described in said sixth clause and codicil in my foregoing will to my son, James Taylor Thornton, in fee simple, and require of him that he pay off the legacies provided to be paid in my said will, as my son Thomas Pringle was required to do in said sixth clause of my will; and said legacies shall be a lien upon said property until paid."

The contestant, Pringle, submits as his ground of contest (in which he is supported by his brother Benjamin), first, that the testator was mentally incompetent to make a will at the time the alleged codicil complained of was executed; second, that undue influence was used in procuring the execution and signature of Thomas Thornton to the said codicil complained of.

The issues thus raised were submitted to a jury, and, after a trial lasting four days, there was a verdict and judgment against this second codicil, leaving the will and the first codicil in effect, of which James Taylor Thornton is here complaining. There are several errors assigned, but in our view of the case it is only necessary to consider the third, namely, that "the court erred in refusing to set aside the verdict of the jury upon the ground that it is contrary to the evidence."

The principles governing this class of cases have been so frequently stated that it is unnecessary to undertake any extended review of the cases though the briefs carefully do so.

1. To sustain these issues the contestants rely upon the testimony of several witnesses, among them Mr. H. V. Glascock, who was the agent named in the last written contract between the testator and Pringle, and he expresses the opinion that he was mentally incapable, but when his testimony is analyzed the facts stated hardly sustain his opinion.

When a nonexpert expresses such an opinion, it is settled that his evidence is of little value except so far as he testifies as to facts which indicate such incapacity. His chief reason appears to be that the testator left the provisions of this contract largely to him (Glascock). This does not make the impression upon us that it seems to have made upon him. It must be remembered that the testator had then left his home and wanted Glascock to look after his son Pringle as well as to look after his (the testator's) own interests as owner of the farm, so it was both wise and natural that he should defer to his prospective agent and leave the details of the contract largely to him, if satisfied with the substance of the agreement. It seems perfectly apparent that at this time the testator had formed the purpose of changing his home and staying for a time with his son Taylor, and, this being true, he desired Glascock's services. Glascock then understood that the testator was going to live on the farm, but the agreement itself, fairly construed, shows that he was...