Walton v. Walton

• Decision Date: 10 June 1937
• Citation: 191 S.E. 768
• Parties: WALTON et al. v. WALTON et al.
• Court: Virginia Supreme Court

191 S.E. 768

WALTON et al.

v.WALTON et al.

Supreme Court of Appeals of Virginia.

June 10, 1937.

Appeal from Circuit Court, Pittsylvania County; J. T. Clement, Judge.

Will contest proceeding between Frank T. Walton and others and Myrtle I. Walton and another. From a decree, Frank T. Walton and others appeal.

Reversed and remanded.

Argued before CAMPBELL, C. J., and HOLT, HUDGINS, GREGORY EGGLESTON, and SPRATLEY, J J.

Harris, Harvey & Brown, of Danville, and Jones & Whitehead, of Chatham, for appellants.

Carter & Williams, Margaret L. Carter, and Tom Irvin Gill, all of Danville, for appellees.

HUDGINS, Justice.

This appeal involves the single question, whether or not the learned chancellor was correct in sustaining appellees' motion, made at the conclusion of the introduction of testimony, to strike from consideration of the jury all evidence introduced to determine the following issues:

"(1) Whether the paper writing, dated August 12, 1932, probated ex parte as the last true will of John T. Walton, deceased, is in fact the last true will and testament of said John T. Walton, deceased.

"(2) Whether the four alleged deeds, dated August 1, 1932, purporting to be from John T. Walton, deceased, to Myrtle L Walton, described in paragraph six of the bill of complaint, are valid and sufficient deeds."

No objection is urged in this court to the procedure permitted by the trial court in allowing the validity of the four deeds to be settled in the same proceedings brought to test the validity of the will. Hence the discussion will be made on the assumption that devisavit vel non was the only issue raised.

Contestees assumed the burden of proof and introduced the three subscribing witnesses to establish the fact that John T. Walton was, on August 12, 1932, of sound mind and disposing memory, and that the will was executed in due form.

J. William Scruggs, an attorney, and one of the subscribing witnesses, testified that he prepared the will at the direction of the testator, to whom he read the paper after it was typed, and, while he and the testator were alone in his private office, he gave it to the testator to read. As soon as Mr. Walton stated that the paper as written was what he desired, Miss Scruggs, a stenographer, and John R. Hagood, a law clerk, both employed by Mr. Scruggs, were called in to witness the execution, which was done in due form. By this will Mr. Walton devised and bequeathed all of his property, both real and personal, to his wife Myrtle I. Walton, to the exclusion of his son and grandchildren. At the same time Mr. Walton executed four separate deeds of gift, conveying to Myrtle I. Walton four separate tracts of land, containing in the aggregate 320 acres, all lying in the same magisterial district in Pittsylvania county.

Mr. Scruggs further stated that the motive which prompted the execution of these voluntary deeds was to make the future safe for the wife of the testator, as some of his creditors were pressing him for payments which he was 'unable to make at that time. The other subscribing witnesses stated that, while neither of them knew the testator very well, he appeared normal to them when he signed the will in their presence. After the introduction of these witnesses, appellees concluded the taking of their testimony in chief.

Appellants then began the taking of their testimony, and introduced more than thirty witnesses to establish mental incapacity and undue influence. A motion to strike appellants' evidence was made at the conclusion of the taking of their testimony, and was overruled. The motion was renewed at the conclusion of the intro-auction of all evidence, and was.sustained. As the affirmative of the issue was on the contestees, their motion was not to strike all of the evidence, but only that offered by appellants. There is some difference between the issue here raised, and the issue in usual common-law actions. In the latter, plaintiff has to bear the burden of proof, hence contestees were not in a position to move for the elimination of all evidence, if they desired the will to be probated. Dickens v. Bonnewell, 160 Va. 194, 168 S.E. 610.

In Culpeper National Bank v. Morris, 191 S.E. 764, an opinion announced at this term of court, we said that a motion to strike the evidence, on the issue devisavit vel non, should be sustained in a proper case. We have said in a number of cases that striking plaintiff's evidence at the conclusion of plaintiff's testimony, and thereby taking the case from the jury, is drastic and should not be done unless it is very plain that the court would be compelled to set aside a verdict for plaintiff, considering the evidence strictly as upon a demurrer thereto. When a motion to strike is made after all the evidence of both parties has been introduced, "a somewhat more liberal rule is sometimes applied for the consideration of the evidence in passing upon the motion." Jones v. Han-bury, 158 Va. 842, 164 S.E. 545, 546; Bray v. Boston, etc., Corp., 161 Va. 686, 696, 172 S.E. 296.

It seems the above is as definite a statement of the rule applied to the consideration of the evidence on a motion to strike, after all of the evidence has been introduced, as this court has attempted to make. Attention is called to the fact that Code, § 6365, requires this court to "affirm the judgment, decree, or order if there be no error therein, and reverse the same, in whole or in part, if erroneous, and enter such judgment, decree, or order as to the court shall seem right and proper and shall render final judgment upon the merits whenever, in the opinion of the court, the facts before it are such as to enable the court to attain the ends of justice."

Hence, after the parties have introduced all available evidence, and the trial court has sustained the motion to strike, on review in this court we examine the evidence to determine whether or not a verdict in behalf of the losing party can be sustained. That is, upon a careful consideration of all the evidence, if we are of opinion that reasonable men may differ on the conclusion to be reached, then it is our duty to hold that the trial court committed error in striking the evidence. The trial court should not sustain this motion in any doubtful case. As pointed out in Burks' Pleading and Practice (3d Ed.) § 256, the motion to strike is made in the heat of the trial, while the jury is waiting to receive the instructions and to hear the argument of counsel. Hence the court has but little time in which to consider the evidence. However, on a motion to set aside the verdict the trial court has ample time to give due consideration to, and weigh the evidence. If on review, this court does not agree with the judge of the trial court in its action in setting aside the verdict, the verdict is in the record, and final judgment may be entered by this court. This procedure eliminates the delay and expense of a second trial, speeds final determination of litigation, and removes possible temptation for the commission of perjury on the second trial. These were the main objects contemplated by the 1919 Code revisors in the provisions added to Code, §§ 6251 and 6365. Again we emphasize that, when evidence has been introduced to sustain an issue and there is doubt in the mind of the trial court as to its sufficiency, that doubt should be resolved against the party making the motion, and the issue submitted to the jury. See Leath v. Richmond F. & P. Ry. Co., 162 Va. 705, 174 S.E. 678.

Viewing the evidence, not as strictly perhaps as on a demurrer thereto, but giving appellants the benefit of all substantial conflict in the evidence, and all fair inferences that may be drawn therefrom, appellants' case may be stated thus: John T. Walton, when he married his first wife, was a man without means. His wife inherited a small estate. By hard work and careful management, with the active assistance of his first wife, he managed to accumulate approximately 1, 000 acres of valuable tobacco land, which in 1935 was estimated to be worth from thirty to fifty dollars per acre. In 1928 his first wife died, leaving one son, Willie E. Walton, and six grandchildren, the children of a deceased son. After this date John T. Walton, who had been a periodical drinker, not only drank more frequently and freely, but became an habitual addict to Somnos, a drug containing chloral -- 25 grains to the liquid ounce. He used this drug, not only when he was recovering from his period-ical sprees, but continuously. As Dr. Barks-dale said: In 1930 "he was taking it ad libitum, he was taking it freely." When some of his relatives and friends tried to persuade him to stop using the drug, he seemed to resent their interference with his use of his resting medicine, as he called it. The habitual use of the drug destroys the brain tissues, and makes one mentally irresponsible and a physical wreck. The effect upon the brain tissues and nervous system is said to be similar to that of opium.

Immediately after his wife's death, the testator's grandson, Frank Walton, with his family, moved into the mansion house, where he kept house for, and looked after, his grandfather until November 12, 1930. On October 10, 1930, John T. Walton made a will giving $500 to the Masonic order and $500 to the local Baptist Church, and the residue of his estate, worth, according to some witnesses, $50,000, to his son and grandchildren. On October 15, 1930, while attending a fair in Danville, John T. Walton, then in his seventy-fifth year, met Myrtle I. Brown, a widow, whose first husband had been dead less than a year. She had been earning $14.50 per week, as an employee of the Dan River Cotton Mills, but due to the fact that the employees of these mills were then on a strike, she was not working anywhere. Soon after she met Mr. Walton she stated to Mrs. Abbott, who occupied the same apartment with her, that she wanted to marry Mr....