woodville v. woodville.

• Decision Date: 14 January 1908
• Citation: 63 W.Va. 286
• Parties: woodville v. woodville.
• Court: West Virginia Supreme Court

63 W.Va. 286

woodville

v.woodville.

Supreme Court of Appeals of West Virginia.

Submitted November 26, 1907.

Decided January 14, 1908.

1. Appeal Incompetency of Witness Objections Not Made Below.

Objection to testimony for incompetency of a witness may be made in this Court, and it is not essential thereto that objection for such incompetency was made in and acted upon by the court below, (p. 289.)

2. Deed Capacity of Grantor.

Courts do not measure capacities of persons nor examine into the wisdom and prudence of their property dispositions. If one be legally compos mentis, be he wise or unwise, he is the disposer of his; own property, and his will stands as a reason for his actions. The test of legal capacity is that one is capable of recollecting the property he is about to dispose of, the manner of distributing it, and the objects of his bounty, (pp. 290, 291.)

3. Same Incapacity Evidence.

Mere infirmity of mind and body is not sufficient to overcome the legal presumption of mental capacity in a grantor in a deed. In order to have much effect, the evidence must show that he did not have sufficient understanding to comprehend clearly the nature of the business he was transacting, (pp. 291, 293.)

4. Sami: Time as to Grantor's Capacity.

The time of the execution of a deed is the material or critical point of time to be considered upon the inquiry as to the grantor's capacity to make the deed. (pp. 291, 293.)

5. Same Undue Influence.

To set aside a deed for undue influence, it must appear that the influence was such as wholly to destroy the free agency of the grantor, and to substitute the will of another for his; and unless such taking away of free agency appears, the showing of a motive and an opportunity to exert such undue influence, together with failing mental powers of the grantor, are not sufficient to overthrow the deed. (pp. 294, 295.)

Appeal from Circuit Court, Monroe County.

Bill by James L. Woodville against Cary Breckenridge Woodville and others. Decree for plaintiff, and defendant Cary Breckenridge Woodville appeals.

Reversed'. Bill Dismissed.

J. W. Marshall, Henry Gilmer, J. D. Logan, and Brown, Jackson & Knight, for appellant.

John Osborne and Mollohan, McClintio & Mathews, for appellee.

Robinson, Judg e:

This suit calls into question the validity of a deed made by Dr. James L. Woodville to his son, Gary Breckenridge Woodville, on April 10, 1902, conveying the greater portion of the lands owned by the grantor, to the exclusion of his other children, it being alleged that such deed was obtained by undue influence. It is a suit of brother against brother, instituted after the death of the grantor. The circuit court held for the plaintiff, decreeing that the deed was made by reason of undue influence, and setting the same aside, and the grantee has appealed.

The grantor was a man eighty-two years and more of age, having resided and practiced as a physician at the old Sweet Springs, in Monroe county, for many years. He was of more than ordinary intelligence, and a rnxmrinent personage in that section. He had acquired, in the course of years, a valuable estate of about fifteen hundred acres, known as Glencary. From this estate the said deed conveyed between seven hundred and eight hundred acres, of which one hundred acres were conveyed in fee, a life estate being reserved in the residue by the grantor. At the time of such conveyance, the grantee was the only one of the children of this old gentleman that remained with him, all the others, three men and three women, had sought fortune for themselves, or, for some reason, had deserted the old home and the duties and responsibilities of takingcare of their aged parent and extending to him love and helpfulness in life's eventide. The mother had departed this life many years before, and for more than ten years the son, Gary, had steadfastly remained with his father on the old place, being his sole family companion after the marriage and removal therefrom of one of the daughters who had remained with them for a time,

Prior to making said deed, this old gentleman had, with his own hand, made a will, devising to the said son, Gary, practically the same portion of the lands, one draft of such will, dated October 22, 1*901, having; certain interlineations in it, or riders attached thereto; and, thereafter, a second draft, or complete and regular copy thereof was made by him on November 5, 1901. The first of these was deposited with a custodian, and the other was found among testator's personal effects after his death. It is significant to note that said will contained the following recitals: "I bequeath to my son, Gary B. Woodville, a larger portion of my landed property than to any other of my legatees. This is done in consideration of the fact that he is the only one of my children who has remained with me all the time, and sacrificed his prospects in life to promote my happiness and interest;" and, "should any of my legatees feel aggrieved at the disposition of my property and attempt to alter the same by an appeal to the courts, then any heir so offending to forfeit his or her portion to the heirs who obey without murmur the conditions of my will." And it is equally significant to note that the said deed expressed the following:" In the additional and further consideration of the affectionate and dutiful regard for said party of the first part as a parent, rendering said party of the first part, aid and comfort in old age, without any fixed pecuniary compensation."

It is shown that on an adjoining estate, known as Lynnside, lived the Lewis family, kinsfolk of the Wood vi lies, and a daughter, an accomplished lady, educated by an uncle living in Richmond, was paid court by Cary B. Woodville, but she declined to marry him because of the objection of the uncle, who desired that she marry not a poor man; and plaintiff alleges that, because of this, the old man was importuned to provide for said son an estate, and thereby remove the objections to marriage; that, yielding to such importunities, the said will was made, but that the uncle, being informed thereof, was not satisfied therewith, and that thereafter the said deed was procured and the marriage consummated. Much reliance is placed upon this state of facts by the plaintiff and his brothers and sisters who join in the prayer of the bill, and upon the statements contained in the answer of said grantee in relation to the same.

While it is true that there was intimacy between the Lewis and Woodville families, and that in his latter days, in his loneliness, enjoying-no companionship but that of his son, and, after his connection as resident physician at the Springs had ended, much of the old gentleman's time was spent at Lynnside; yet, as this was but natural under the circumstances, and in no way inconsistent with pure motives on behalf of those interested, or the validity of the said deed, and the evidence failing to present a different view of such intercourse, we need not encumber this opinion with much that has been said relative to this intimacy and companionship between the two families. We may as well come speedily to the point in the case. To rehearse a great deal of the facts will be of no utility in future cases. Already has precedent been established by leading cases involving* similar circumstances. Reiteration cannot be of service in the Reports.

The depositions of sons and daughters attacking this conveyance, the husband of one, and the wife of another, appear in the case, and eliminating the testimony of these interested persons in relation to personal transactions and communications with the deceased grantor, as we are com-, pelled to do, but little, in fact, nothing, is left upon which plaintiff's case can stand. Extended argument has been submitted on the point that objection to this testimony, for such incompetency of the witnesses, should not avail in this Court, since exception thereto for such cause does not appear to have been passed upon by the court below. But the rule has long been established otherwise. Rose v. Brown, 11 W. Va. 122; Martin v. Smith, 25 W. Va. 579; Kimmel v. Shroyer, 28 W. Va. 505; Long v. Ferine, 41 W. Va. 314; and other cases. We need not hesitate to say that, waiving the question of incompetency of these witnesses, and reading their testimony with all other proof in the case, it is plainly insufficient to sustain the finding of undue influence and the decree of the circuit court annulling the deed. Such decree is without sufficient and proper evidence to support it; and is plainly at variance with the well established principles relating to such cases enunciated in former opinions of this Court. Buchey v. Buchey, 38 W. Va. 168; Delaplain v. Grubb, 44 W. Va 613; Farnsworth v. Noffsinger, 46 W. Va. 410; Teter v. Teter, 59 W. Va. 449; and similar cases.

Take the whole of the evidence, competent and incompetent, and what does it prove? Surely nothing-directly as to undue influence. What circumstantially or inferentially? Nothing weighty enough to overthrow the deed. What is relied upon in this proof? Mere weakness in the grantor of body and mind, that of the latter not proved by a preponderance of the testimony by any means, if indeed not wholly refuted by the testimony of those having transactions with him, as well as by the strong and convincing evidence of capacity appearing from the papers and writings ^exhibited as made by this grantor near the time of the execution of the deed in question. With this theory of old age and accompanying mental weakness, plaintiff and his colleagues rely upon the circumstances of the intimacy between the Lewis family and Dr. Woodville and his son Gary, and the desire of the young people to be in a financial position to overcome the objections of the uncle to their marriage. But mark you, granting, if we could in the face of strong proof, the mental weakness, nothing but the mere circumstance of this close intimacy and the...