Webb v. Dye

• Decision Date: 22 October 1881
• Citation: 18 W.Va. 376
• Parties: WEBB v. DYE et als.
• Court: West Virginia Supreme Court

18 W.Va. 376

WEBB v. DYE et als.

Supreme Court of West Virginia.

October 22, 1881

1. The question of the due execution of a will is to be determined like any other, in view of all the legitimate evidence in the case; and no controlling effect is to be given to the testimony of the subscribing witnesses. Their direct participation in the transaction must of course under ordinary circumstances give great weight to their testimony but it is liable to be rebutted by other evidence either direct or circumstantial.

2. Upon an issue devisavit vel non a certificate of attestation signed by the subscribing witnesses, showing that all the requirements of the statute for the valid execution of the will have been complied with, is proper to go to the jury with the other evidence on the question of the due execution of the will.

3. Upon such an issue it is proper to instruct the jury, that the acts and conduct of the testator on the alleged occasion of the execution of the will together with the attestation clause and the genuineness of the signatures of the subscribing witnesses thereto are to be considered in determining the question, whether the paper in controversy was in fact the will of the testator.

4. A will must be subscribed but need not be proven by two attesting witnesses.

5. The testimony of a subscribing witness against the validity of a will must be viewed with suspicion.

6. Where upon an issue devisavit vel non a motion is made to set aside the verdict and grant a new trial, and all the evidence is set out in the bill of exceptions, the Appellate Court will reject all the parol evidence of the exceptor, which is in conflict with that of the other party and if upon the evidence of the appellee and written evidence of the appellant the case is in favor of the appellee, the court will not disturb the verdict.

Appeal from and supersedeas to a decree of the circuit court of the county of Ritchie, rendered on the 14th day of May, 1880, in a chancery cause in said court then pending wherein John Webb was plaintiff and Annie Dye and others were defendants, allowed upon the petition of John Webb and others.

Hon James M. Jackson, judge of the fifth judicial circuit rendered the decree appealed from.

The facts of the case are sufficiently stated in the opinion of the Court.

Walter S. Sands and H. C. Showalter for appellants relied upon the following authorities: Pollock v. Glassel 2 Gratt. 439; Tate & Sands, Am. Form Book, 319; Remson v. Brinkerhoof, 8 Paige 487; 26 Wendall 325; Jarman on Wills, (5th Am. ed.) 218, 220; Lewis v. Lewis, 11 N.Y. 220, 224; 3 Lomax Digest, 93; 1 Redfield on Law of Wills 218, 220; Burwell v. Corbin, 1 Rand. 131, 148, 158; Dudleys v. Dudleys, 3 Leigh 443, 446; Clark v. Dunnavant, 10 Leigh 34, 13; Waller v. Waller, 1 Gratt. 477; Rosser v. Franklin, 6 Gratt. 1; Code of Virginia 1860, page 573 § 4; Code of Virginia 1849, chap. 122 p. 516 § 4; Beane v. Yerby, 12 Gratt. 239; Jesse v. Parker, 6 Gratt. 57; Johnson v. Dunn. 6 Gratt. 625; Nock v. Nock, ex'r, 10 Gratt. 106; Parramore v. Taylor, 11 Gratt. 220; Greene v. Cain, 12 Gratt. 252; 6 Bing. 310 (19 E. C. L. 91); 7 Bing. 459; (20 E. C. L. 197); In re Goods of Ann Rawlins, 2 Curteis 326; Fischer v. Popham, 13 Eng. Rep. (Moake) 469; Newton v. Pope, 1 Cowan 109; Carrington v. Bennett, 1 Leigh 340; Campbell v. Lynn & Co., 7 W.Va. 665.

John A. Hutchinson, for appellees, cited the following authorities: 1 Jarmin on Wills (5th Am. ed.) 220 note y.; 3 Barb. Chy., 158; 1 Wms. Ex'rs 87; 3 Curtis 547; 2 Phill. 449; 1 Redf. on Wills 237, pl. 11 and cases cited in note 24; 5 Harr. 57; 30 Gratt. 56; 29 Gratt. 61; 27 Gratt. 96; 36 N.Y. 486; 12 Moore P. C. C. 158; 27 N.Y. 9; 24 N.Y. 51; 3 Sw & . Tr. 200; Id. 580; 25 N.Y. 422; Id. 252; 12 Gratt. 239; 6 Gratt. 1; 52 N.Y. 517; 14 Gratt. 621; 15 W.Va. 300; 14 W.Va. 304.

OPINION

JOHNSON, President.

A paper-writing purporting to be the last will and testament of Benjamin Webb, dated the 29th day of August, 1861, purporting to be signed and sealed by the said testator, and witnessed by William Harris and Phillip James Frederick, Jr., whose names are signed below the following attestation: " Signed, sealed, published and declared by the said Benjamin Webb as and for his last will and testament in the presence of us, who at his request and in his presence and in the presence of each other have subscribed our names as witnesses thereto," was presented to the county court of Ritchie county on the 10th day of June, 1879, for probate, and the order of the county court shows, that it " was duly proven by Philip James Frederick, Jr., one of the subscribing witnesses thereto; whereupon the said Philip James Frederick, Jr., appeared in open court and being duly sworn testified, that he was present, and the testator, Benjamin Webb, acknowledged the said writing to be his will, although he did not see him sign his name thereto, and he in his presence at his request, and in the presence of William Harris, the other subscribing witness, who is now deceased, signed his name as a witness thereto," and the signature of said other subscribing witness, William Harris, being proved, the will was admitted to probate. On the 29th day of August, 1879, the plaintiff, John Webb, filed his bill in the circuit court of Ritchie county against the proper parties, charging that said paper-writing was not the will of Benjamin Webb, deceased, because, at the time said will was attested, it was not signed by the said Benjamin Webb, and that the testator never acknowledged the said paper as his will in the presence of the witness, Frederick, & c. The bill further charges, that the testator, at the time the said will purports to have been executed was of unsound mind, and that undue influence was exerted over him to induce him to make said will, if he did execute the same. The bill prays for an issue devisavit vel non. The defendants answer, denying the allegations of the bill.

On the 30th day of October, 1879, the issue was ordered in the usual form, and was tried at the April term, 1880; and on the 29th day of April, 1880, the jury rendered a verdict in favor of the will, which verdict the court approved and dismissed the plaintiff's bill. At the trial of the issue the contestants, John Webb and others, saved three bills of exceptions. The first to the admission as evidence to the jury of the attestation to the will and the signatures thereto of the subscribing witnesses; the second, to the giving of two of the instructions asked for by the proponents of the will; the third, to the refusal of the court to set aside the verdict of the jury and grant a new trial. Did the court err to the prejudice of the appellants in the matters complained of?

The witness, Frederick, says, in his evidence on the issue, that he did not see the name of Benjamin Webb to the will, when he witnessed it. When recalled he said: " When I signed my name to the paper * *, I looked at it to see what names were on it. I saw the seal or scroll on the right hand side but did not see Benjamin Webb's name there." On cross examination he said: " I saw the scroll to the paper; that is my recollection about it now. I have since talked to Showalter and Braiden about it. I do not recollect, that I saw the name of Benjamin Webb to the paper. I will not say that it was not there, when I signed my name, but I do not recollect of seeing it." Frederick was the miller at the testator's mill, and aside from his testimony, it is not shown, what degree of intelligence he possessed. He says he did not read the will or the attestation clause to the will, nor was there any part thereof read to him; that Benjamin Webb came down to the mill, where he was at work, and asked witness to go to his office, saying: " I want you to go to my office and witness a paper for me." " I at once went to the office, and there found Wm. Harris sitting by the window with a paper before him on the desk; he turned to Benjamin Webb and said, ‘ Squire Webb, is this your witness,’ to which Benjamin Webb replied ‘ Yes he is.’ William Harris then doubled over the paper and said: ‘ Write your name there,’ and I did then write my name in the place, as directed by him, in the presence of the said Webb and Harris. Mr. Webb saw me write my name on the paper. There were no other witnesses then present at that time. I then said, " If you old gentlemen get me into trouble about this, you may look out.' William Harris replied ‘ you need not be afraid, Mr. Frederick, I will be with you.’ At the time I signed the paper I think William Harris's signature was on it just above mine. I did not see Harris sign his name to the paper neither did I see the name of Benjamin Webb thereto. I did not at that time while in the office know, what the paper I signed was. I did not read the body of it nor the attestation clause, nor was the same or any part thereof read to me; neither did Benjamin Webb, or William Harris at that time inform me, while in the office together, what the paper I signed was. Benjamin Webb was not seated, while I was in the office; and Benjamin Webb did not say anything, while I was in the office, except what I have already said. He said, ‘ Yes, he is,’ in answer to William Harris's question ‘ Is this your witness?’ "

The will as well as the order of the county court admitting it to probate was before the jury. The signature of William Harris was proved to be his genuine signature; and it was also proved, that the will and attestation clause were in the handwriting of said William Harris, and that said William Harris wrote a great many legal papers and wills; that he was a magistrate and familiar with legal papers. From the weight of the testimony there can be no doubt, that the signature of Benjamin Webb to...