Ward v. Brown
| Decision Date | 18 April 1903 |
| Parties | WARD et al. v. BROWN et al. |
| Court | West Virginia Supreme Court |
Submitted January 26, 1903.
Syllabus by the Court.
1. An executor of a will may propound it for admission to probate and prosecute an appeal from a decree, declaring it void, in a suit brought to impeach it.
2. Whether a bequest actually made is valid cannot be inquired into upon a bill filed to test the validity of a will. That question is properly raised upon a bill to construe and expound the will.
3. It is not error to direct an issue devisavit vel non without proof of the interest of the plaintiffs, unless objection has been made that they would have no interest in the estate if the will were set aside, or unless such want of interest appears from the record itself.
4. Attesting witnesses of a will who are introduced to impeach the will on the grounds of want of proper execution unsoundness of mind, or undue influence, will not be excluded; but their evidence will be viewed with much suspicion, and it is proper to so instruct the jury.
5. When part of the attesting witnesses testify against the will, it is error to instruct the jury that the evidence of the witnesses present at the execution of the will is entitled to peculiar weight.
6. When a proper instruction is asked and given, it is error to give another improper instruction which modifies it and nullifies its effect or obscures its meaning.
7. Evidence of physicians as to testamentary capacity is entitled to greater weight than that of nonprofessional persons, provided they have had personal observation and knowledge of the person whose mental capacity is in question otherwise, it is not. Rule on this subject announced in Jarrett v. Jarrett, 11 W.Va. 584, Kerr v Lunsford, 8 S. E. 493, 31 W.Va. 659, 2 L.R.A. 668, and Nicholas v. Kershner, 20 W.Va. 255, examined and explained.
8. Expert testimony, except under special circumstances, is entitled to only such weight as the jury may deem it entitled to when viewed in connection with all the evidence and circumstances; and it is error to instruct the jury that the evidence of physicians testifying as experts only, on the trial of an issue devisavit vel non, is entitled to great weight.
9. It is error to classify witnesses in respect to the weight and value of their evidence by an instruction to the jury, unless the classification is based upon a well-defined distinction as to the opportunities and powers of the witnesses to know the truth.
10. Evidence of the acts and conduct of the testator tending to show soundness of mind at or near the time of the execution of the will is entitled to more weight than the opinions of witnesses based upon the erratic conduct and eccentricities of the party of whom they speak.
11. When there is a doubt as to the competency of the testator to make a will, the fact that he has given his property to persons other than those related to him in a reasonable degree by blood is proper to be considered by the jury.
12. When evidence is introduced to show interest on the part of a witness for the purpose of discrediting him, it is improper to refuse to admit evidence to show the extent of such interest or to disprove its existence; and any person who is conversant with the facts may testify as to them, although the alleged contract is between the witness and a municipal corporation.
13. An instruction which tells the jury that if they believe any witness has testified falsely in the case as to material matters they may disregard such false testimony, or give to it and all the evidence of such witness such weight as they believe it entitled to, is improper in failing to inform the jury that they may disregard all the evidence of such witness.
14. If an instruction is proper in other respects, it is not vitiated by merely naming the witness to whose testimony it is applicable.
15. The court is not bound to repeat its instructions.
16. Point 20 of the syllabus in McMechen v. McMechen, 17 W.Va. 683, 41 Am.Rep. 682, approved.
17. Where a will has been prepared by, and executed in the presence and under the direction of, a lawyer of ability and good standing, professionally and as a citizen, and two of the attesting witnesses attempt to impeach the will on the grounds of nonexecution, insanity, and undue influence, and the person under whose supervision it was executed is dead, and an effort was made, when too late, to take his testimony, it is proper to admit evidence of his character and capacity.
18. When an erroneous instruction has been given by the court to the jury, the presumption is that the exceptor was prejudiced thereby, and the verdict will be set aside on account thereof, unless it clearly appears from the record that he could not have been prejudiced thereby.
19. When a correct instruction is refused, the verdict will be set aside, unless the appellate court can see from the record that, even under the instruction, a different verdict could not rightly have been found.
20. The giving of erroneous instructions bearing upon the weight and value of certain testimony, when the evidence is contradictory, is cause for reversal.
Appeal from Circuit Court, Kanawha County; E. S. Doolittle, Judge.
Bill by John Ward and others, B. Ward's heirs, against J. F. Brown and others. Decree for plaintiffs. Defendants appeal. Reversed.
Brown, Jackson & Knight, Flournoy, Price & Smith, and Mollohan, McClintic & Mathews, for appellants.
E. W. Wilson and A. B. Littlepage, for appellees.
Brigham Ward, a resident of the city of Charleston, and an eccentric old man, died on the 7th day of April, 1896, leaving a will which he had executed two days before his death. Many of his peculiarities and eccentricities are attributed to the fact that from his birth he had been afflicted with what is called a "cleft palate," which interfered with his speech. He was originally from New Hampshire, and came to this state in 1859. After serving in the federal army for some time, he came to Charleston near the close of the Civil War, and continued to reside there. He never married, nor had he any relatives living near him. For many years he had been in the grocery business, and at the time of his death he owned considerable property. By his will, after directing payment of his debts and the erection of a monument to cost not more than $600, he bequeathed $10,000 of his estate to the trustees of the Kanawha Presbyterian Church, to be used by them in paying off the debt contracted by them in enlarging the church edifice, and the residue of his estate he gave to the city of Charleston, to be invested, and to be known as "The Brigham Ward Hospital Fund," the income to be used in supporting and maintaining free beds in the hospital of said city then in process of erection. The will was prepared by Edward B. Knight, a very able lawyer and an upright man, and he and James F. Brown were appointed executors of the will. Mr. Brown qualified, but Mr. Knight did not.
After the will had been probated in the county court of Kanawha county, John Ward and others, nephews and nieces and grand nephews and nieces of the testator, instituted a suit in chancery, alleging in their bill that they were the only heirs and distributees of said Brigham Ward; that the writing which had been probated was not his will; that at the time it was executed he was of unsound mind, and that undue influence was exerted over him to induce him to make the will; and praying for an issue devisavit vel non. Answers were filed by the executor, the trustees of the church, and the city of Charleston, the issue directed and tried on the law side of the court, and a verdict was rendered in favor of the contestants. Numerous exceptions were taken to the rulings of the law court, and, among others, to its action in overruling a motion to set aside the verdict. After the proceedings in the law court were certified and returned to the chancery court, another motion was made to set aside the verdict, and it was overruled, and a decree entered declaring that said paper writing was not the will of said Brigham Ward. From this decree an appeal was taken by the executor of the will and the trustees of the Kanawha Presbyterian Church. The city of Charleston did not join in the petition for the appeal, but, before the case was argued and submitted, it appeared by counsel and united in the appeal, praying that the decree might be reversed, the verdict of the jury set aside and a new trial awarded, and that the brief f iled for the appellants be read in its behalf.
It is insisted by counsel for the appellees that the bequest to the Kanawha Presbyterian Church is void, that the executor has no interest in the matter in controversy, that the city of Charleston is not properly before this court, and that therefore the appeal should be dismissed. The first reply to this is that the bill does not allege invalidity of the bequest to the church trustees. Upon that question the court below took no action whatever, nor could it have done so in the absence of pleading. If the bill had contained such an allegation it would have been improper, since that question is one of construction, to be disposed of in a subsequent suit brought for the purpose of having the will construed in case it should stand. This proceeding is little, if anything more than one of probate, since it can only be entertained by a court of equity under a special statute, and does not belong to the general chancery jurisdiction of the court. Many authorities hold that the only question that can be decided is whether the alleged will, or any part thereof, is the will of the testator; in other words, whether in fact and in law...
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