Bell v. Wolfkill

⁴⁰⁹ Pattison, J., delivered the opinion of the Court. Emma J. Wolfkill died on January 22, 1926, seised and possessed of certain real and personal property, and leaving surviving her two sons, John B. Wolfkill and Albert J. Wolf-kill, and three daughters, Bessie B. Miller, Cora W. Hiller, and Mollie E. Bell, and two grandsons, J. Harris Sagle and Donald Sagle, sons of a deceased daughter, Lola P. Sagle. On the 19th day of November, 1925, she executed a paper writing purporting to be her last will and testament, by which she, after providing for the payment of her just debts and funeral expenses, devised and bequeathed the whole of her estate real and personal as follows, to wit: “To my son, John B. Wolfkill, $2,000. To my son Albert J. Wolfkill, $1,500.

To my daughter, Bessie B. Miller, $2,500. To my daughter, Mollie E. Bell, $750, which said sum of $750 shall he a charge against the distributive share hereinafter devised to my daughter, Cora W. Hiller. To my grandson, Norman Guy Wolfkill, son of Albert J. Wolfkill, $1,000. To my granddaughter, Nellie E. Wolfkill, daughter of John B. Wolfkill, in appreciation of the care exercised over me, for the attention given me and for the great kindness displayed toward me, $500.

All the rest and residue of my estate loft remaining after the devises hereinbefore mentioned shall be divided equally among my five children share and share alike and should any of my children be deceased at the time of my death and leave surviving them any child or children, then I will and direct that such child or children so surviving any child of mine so deceased as aforesaid, shall take the share or respective share such child of mine if living would have taken. “2nd. I will and direct that the distributive shares hereinbefore devised to my daughters, Cora W. Hiller and Mollie E. Bell shall ho held in trust for the use and benefit of the said Cora W. Hiller and Mollie E. Bell during their natural lives, the income of which shall he paid to them annually, and upon the death of the said Cora W. Hiller, then the entire estate so de ⁴¹⁰ vised to her as hereinbefore mentioned, shall be divided among her children share and share alike, and should any child or children of the said Cora W. Hiller be deceased at the time of the death of the said Cora W. Hiller and leave surviving them any child or children, then I will and direct that such child or children so surviving shall take the share or respective share of such parent or parents, if living, would have taken, and upon the death of the said Mollie E. Bell I will and direct that the entire estate so devised to her as hereinbefore mentioned, shall revert to my estate and be distributed to my children share and share alike as provided for the distribution of my original estate. “3rd. I hereby constitute, nominate and appoint my son, John B. Wolfkill, and my son-in-law, Harry R. Miller, to be the executors of this my last will, with full power and authority to sell and convey the whole of my estate of a saleable nature and reduce the same to cash and make distribution of the proceeds as hereinbefore directed, and I further will and direct that they be excused from giving any other bond than that which is required by law.” The alleged will was, on the 23rd day of February, 1926, admitted to probate by the Orphans’ Court of Washington County. On the 13th day of April, 1926, Mollie E. Bell, Cora W. Hiller, and J. Harris Sagle and Donald Sagle, by their father and next friend, J. W. Sagle; filed a caveat to said will, which resulted in five issues being framed and sent to the Circuit Court for Washington County for trial.

These issues were: (1) Knowledge and understanding of the contents of the will: (2) the factum of the will; (3) mental capacity; (4) undue influence; and (5) fraud. The executors of the will, John B. Wolfkill and Harry R. Miller, were made party defendants to the proceedings. At the conclusion of the caveators’ evidence, the court granted the third, fourth and fifth prayers of the caveatees, and for their first and second prayers, it substituted two ⁴¹¹ instructions of its own, which are designated as eaveatees’ first and second prayers. By the eaveatees’ third prayer, the jury was instructed that there was no legally sufficient evidence to sustain the third issue, as to the capacity of the testatrix to make a valid deed or contract, and directed a verdict of “yes” to that issue.

By the fourth prayer, the jury was instructed that there was no legally sufficient evidence to sustain the fourth issue, as to undue influence practiced upon the testatrix, and directed a verdict of “no” to that issue. By their fifth prayer the jury was instructed that there was no legally sufficient evidence to sustain the fifth issue, as to whether said alleged will. was obtained by fraud practiced upon the testatrix, and directed a verdict of “no” to that issue. By the eaveatees’ first prayer, the jury was instructed that there was no evidence legally sufficient to show that the testatrix was not of sound and disposing mind and capable of making a valid deed or contract at the time of the execution of the paper writing, purporting to be her last will and testament, and if it found that the said testatrix signed said paper writing, then the presumption was that she knew and understood the contents thereof, and by it they were further instructed that there was no evidence legally sufficient to enable them to find such presumption had been overcome, and it directed a verdict of “yes” to the first issue, as to her knowledge and understanding of the contents of such paper writing. By their second prayer, the jury was told that if it found from the evidence that the testatrix signed the paper writing purporting to be her last will and testament, in the presence of those designated thereon as witnesses thereto, and that they in her presence subscribed their names as witnesses, then its verdict must be for the eaveatees. on the second issue, and their answer thereto must be “yes.” The jury, upon the instructions given it by the court, found for the eaveatees on each and all of said issues, and it was ⁴¹² to- the court’s ruling’s thereon that the fifth bill of exceptions was taken.

The other four exceptions relate to rulings of the court in rejecting certain evidence offered by the caveators. We will first consider the ruling of the court in granting the caveatees’ third prayer, by which the jury was told that there was no evidence legally sufficient to sustain the third issue, the one as, to the mental capacity of the testatrix to make a valid deed or contract, and by which prayer the question presented by that issue was withdrawn from the consideration of the jury. The record discloses that the testatrix was, at the time of her death, advanced in years. Her husband had died several years before and, at the time of the execution of the alleged will, she was living at her home with her daughter and son-in-law, Bessie and Harry B. Miller.

An earlier will had been executed by the testatrix in June, 1923, the provisions of which differed but little from the will in question, executed two years and five months later. In the first of these wills she gave to- her son John the sum of twenty-five hundred dollars. In the last she gave- to him two thousand dollars, but gave to her granddaughter Nellie, the daughter of John, who had received nothing by the first will, the sum of five hundred dollars. The reason stated by the- testatrix for making this change in the disposition of her estate was that she thought Nellie was entitled to such remembrance because of the services which she had rendered her.

In all other respects the will of June, 1923, was the same as the will of November 19th, 1925. The witnesses produced by the caveators consisted of themselves and members of their immediate family. It is shown from their evidence that the testatrix, through a period of more than thirty years, had at times what the witnesses called “spells,” when she would call her daughters and others ugly and vulgar names, indicating that they were guilty of offenses of which the record does not show them to have been guilty, and on such occasions she at times would become angry with them and attempt to do them bodily injury, would threaten to kill them. At other times, however, when nor ⁴¹³ mal, she would treat them all right.

It was only while in these spells she treated them in the manner stated. It was said by them that, in talking to one of her children, she would criticize one or more of the others and would speak of them in a way indicating that she did not care for them, and when she would be asked, by those whom she had criticized, to explain what she had said, she would deny it. This they said often produced discord and bad feeling among the ■different members of the family. The husband of the testatrix, several years before his death, suffered from some mental derangement and was confined to one of the institutions of the state.

It was stated by a number of the wfftnesses that at times different members ■of the family would compare the mental condition of the father with that of the mother, saying that she was worse .than he was and incapable of transacting any business. Among other things that were said of her was that, on one ■occasion, Dr. Wertz, her attending physician, brought Dr. Prather out to see her, and in making an examination of her they placed a piece of ice upon her heart, and she said in so doing “they were fools and were trying to make a fool of her”; that in her last spell of sickness, she would only let certain ones give her medicine, these were the Millers and her granddaughter Kellie, though the medicine given was only a teaspoonful of soda in a glass of water. Mollie Bell, the daughter of the testatrix, one of the caveators, testified that on one occasion, about thirty-two years prior to her mother’s death, her mother took one of her brothers and laid him on a pile of laths, and beat him with one of them until she nearly killed him, and that she would have killed him had it not been for the intervention of a colored woman. The witness further testified that her mother would have these “terrible spells”, which would last her sometimes a day and other times not so long.

She had heard her brother John say