Wooddy v. Taylor

• Decision Date: 13 March 1913
• Parties: WOODDY et al. v. TAYLOR et al.
• Court: Virginia Supreme Court

77 S.E. 498

114 Va. 737

WOODDY et al.

v.TAYLOR et al.

Supreme Court of Appeals of Virginia.

March 13, 1913.

1. Wills (§ 155^*)—Undue Influence—Effect.

Before undue influence can be made ground for setting aside a will, it must be sufficient to destroy free agency on the part of testator.

[Ed. Note.—For other cases, see Wiils, Cent. Dig. §§ 375-381; Dec. Dig. § 155.*]

2. Wills (§ 163*)—Undue Influence—Bub-den of Proof.

The burden is on a party attacking a will for undue influence to prove it.

[Ed. Note.—For other cases, see Wills, Cent Dig. §§ 388-402; Dec. Dig. § 163.*]

3. Wills (§ 166*)—Undue Influence—Sufficiency of Evidence.

Evidence held insufficient to show that a testator was unduly influenced in making his will.

[Ed. Note.—For other cases, see Wills, Cent. Dig. §§ 421-437; Dec. Dig. § 166.*]

4. Wills (§ 52*)—Competency of Testator —Age.

The presumption of competency to make a will is not destroyed by any extremity of age.

[Ed. Note.—For other cases, see Wills, Cent. Dig. §§ 101-110; Dec. Dig. § 52.*]

5. Wills (§ 55*)—Mental Capacity—Disease.

Incompetency to make a will is not established by proving that the mind has been impaired by disease.

[Ed. Note.—For other cases, see Wills, Cent. Dig. §§ 137-158, 161; Dec. Dig. § 55.*]

6. Wills (§ 50*)—Mental Capacity—Sufficiency.

Testator at the time of making his will need not retain all the force of intellect which he may have had at a former period; if he still possesses a mind sufficient to comprehend and advise as to the ordinary transactions of his life, and to give directions as to how his business and estate shall be managed, he is competent.

[Ed. Note.—For other cases, see Wills, Cent. Dig. §§ 96-100; Dec. Dig. § 50.*]

7. Wills (§ 55*)—MtBntal Capacity—Evidence.

To impeach a will on the ground that testator is incompetent, the incompetency must be clearly proved to exist.

[Ed. Note.—For other cases, see Wills, Cent. Dig. §§ 137-158, 161; Dec. Dig. § 55.*]

8. Wills (§ 55^2-*)—Mental Capacity—Sufficiency of Evidence.

Evidence held insufficient to show that a

testator 86 years of age was incompetent to

make a will. [Ed. Note.—For other cases, see Wills, Cent.

Dig. §§ 137-158, 161; Dec. Dig. § 55.*]

Appeal from Chancery Court of Richmond.

Bill by John P. Wooddy and another against one Taylor, executor, and others, to set aside a will. From a decree sustaining the will, complainants appeal. Affirmed.

D. O. Wendenburg, of Richmond, for appellants.

A. W. Patterson and S. S. P. Patte-son, both of Richmond, for appellees.

HARRISON, J. The last will and testament of T. C. Wooddy, deceased, was duly proven and admitted to probate in the chancery court of the city of Richmond on the 10th day of June, 1910, and one week thereafter this bill was filed by the appellants, John P. Wooddy and Clayton J. Wooddy, seeking to impeach the will and have the same set aside upon the ground that the testator had been unduly influenced and was mentally incapable of making the will. There was an issue out of chancery to determine the question thus raised, and a mass of evidence taken. The contestees demurred to the evidence, and the jury brought in a verdict in their favor, subject to the action of the court upon the demurrer. Upon due consideration the court entered a final decree sustaining the demurrer to the evidence, ratifying, approving, and accepting the verdict of the jury, declaring the contested paper to be the true last will and testament of T. C. Wooddy, deceased, and dismissing the bill. From that decree this appeal was taken.

It appears that the testator was a citizen of Richmond, who died in June, 1910, at the advanced age of 86, possessed of a considerable estate, and without lineal descendants. His wife died many years before his death. There were two children of the marriage, both daughters. One of these married E. Harvie Spence, a merchant of Richmond, and afterwards died without issue. The other daughter married a Mr. Bruce, and died leaving an only daughter, who married Josiah Vaughn, a druggist of Richmond.

The uncontradicted evidence shows that throughout all the years of his life, after Mr. Spence became his son-in-law and Mr. Vaughn became his grandson-in-law, the warmest and most cordial relations existed between them. They lived together most of the time, and when not actually living under the same roof their intercourse was almost daily and very intimate; the testator manifesting his interest in and affection for them in many ways. One of the appellants was his nephew, and the other his great-nephew. It satisfactorily appears that appellants, as well as other collateral kin, had seen comparatively little of testator, and that no kindly or in timate relations existed between them; indeed they seem to have had very little knowledge of each other, although living in the same community.

On the 14th day of February, 1908, the testator made and executed his will, by which, after providing for his funeral expenses and debts, he made the following disposition of his estate:

"3rd Item: I give, bequeath and devise to my son-in-law, E. H. Spence, and my granddaughter, Annie C. Vaughn, wife of Josiah Vaughn, all the rest and residue of my estate both real and personal, after the payment of my just debts, in equal portions, share and share alike, and if my said granddaughter, Annie C. Vaughn, should die before I shall depart this life, I give, bequeath and devise to my grandson-in-iaw, Josiah Vaughn, the husband of the said Annie C. Vaughn, that portion of my estate which, in event of his surviving me, will go to my said granddaughter under the first portion of this clause.

"4th Item: Having the fullest confidence in the integrity of my hereinafter named executors, I have requested them to perform certain acts and do certain things, a memorandum of which acts and things is to be found in my private papers of which my executors know. I hereby enjoin them to carry out to the letter the terms of said memorandum.

"5th Item: I hereby appoint my son-in-law, E. H. Spence, and my grandson-in-law, Josiah Vaughn, executors of this my will and desire that no security be required of them as such."

The memorandum referred to in this will consisted of a list of small legacies to charities and a number of personal friends, which were to be paid after his death, unless paid and marked off by him during his lifetime. The paper shows that about half of these items had been paid and marked off at the time of the testator's death.

On the 23d of September, 1909, the testator made and executed a paper which is designated as a codicil to his will, but which is, in substance, a new will, by which, after setting forth that E. H. Spence and Annie C. Vaughn had both departed this life, making the codicil necessary, he devises and bequeathes the portion of his estate which was intended for said E. H. Spence, to wit, one half thereof, to Mrs. Bessie A. Spence, the second wife of his deceased son-in-law, and E. Harvie Spence, Jr., and Miss Mary D. Spencer, share and share alike, or one-sixth each, and gives the remaining half of the estate to Josiah Vaughn, the husband of his deceased granddaughter, and provides that should Vaughn not be living when he died, the share intended for him should fall in with the other moiety of his estate and pass to Bessie A. Spence, Mary D. Spencer, and E. Harvie Spence, Jr. In lieu of the fourthitem of his will, he provides in the codicil for the small legacies which had been mentioned in the memorandum referred to in his will. He appoints his grandson-in-law and H. Selden Taylor his executors, and requests that no security be required of them.

In view of the long, intimate, and devoted family relations that had existed between the testator and the chief objects of his bounty, provided for both in the will of February, 1908, and the codicil thereto of September, 1909, and of the fact that he had no lineal descendants, and no collateral kin that he had ever manifested any special interest in, there was nothing unreasonable or unnatural in the disposition made by him of his estate.

Viewing the evidence in this case from the standpoint of a demurrer to the evidence, we are of opinion that the appellants have failed to sustain the allegations of their bill that the testator was incompetent to make the will and codicil thereto involved in this controversy, and that he was constrained to make such disposition of his property by undue influence....