Barnes v. Bess , 171 Va. 1 ( 1938 )

Spratley, J.,

delivered the opinion of the court.

Ackey E. Bess, a negro resident of Portsmouth, Virginia, died in 1936, leaving an estate of between eight and nine thousand dollars, consisting largely of real property. He was around seventy or seventy-five years of age at the time of his death. His wife had been dead about ten or eleven years. There was only one child of their marriage, a daughter, who was also dead. This daughter left surviving her one child, Jennie Bess, a grandchild of Ackey E. Bess, his sole surviving heir-at-law, and one of the defendants in error. The old negro man retired, in the year 1925, from a merchandise business which he had operated for many years, and from which he had accumulated his property.

On November 22, 1927, Bess consulted Thomas H. Reid, a negro lawyer, and the latter, at the request of Bess, drew up for the latter a last will and testament. In this instrument, Reid was designated as executor.

About five years later, Bess went to the office of John W. Barnes, a negro notary public in his city, the plaintiff in error, and there a second will was drawn up by Barnes for Bess. The paper writing in question here is claimed to be that will. It contains on its third and last page the signatures of Bess and two witnesses.

In answer to the question how it happened that he was named as beneficiary and as executor, Barnes made a cloudy and indefinite explanation. He said that Bess came to him, and told him that he had had some church trouble, and had been dismissed “from the Trustee Board,” and wanted to change his will; and that Bess said, “I don’t want him to look after my business,” presumably referring to Reid, and requested Barnes to write his will and act as his executor. There is no explanation of the reason for making Barnes a substantial beneficiary other than he was not paid in money for drawing the will.

After the death of Ackey E. Bess, a paper writing purporting to be the true last will and testament drawn by John W. Barnes, dated May 15, 1932, was found in the iron safe of the decedent. Upon the motion of Barnes, it was admitted to probate in the clerk’s office of the Circuit Court of the city of Portsmouth, and Barnes qualified as the executor thereof. Jennie Bess and John Elliott, a nephew of the decedent, filed an application for an appeal from the probate. Upon hearing the appeal, an issue of devisavit vel non was directed before a jury. The jury found that the paper writing dated May 15, 1932, was not the true last will and testament of Bess. The trial judge sustained the verdict of the jury, and entered a final judgment for the contestants of the will. The plaintiffs in error are here appealing from that judgment on the grounds that the judgment is contrary to the law and the evidence and for misdirection of the jury by the court.

The paper writing dated May 15, 1932, was attacked on the grounds of lack of proper testamentary capacity, lack of proper execution, and fraud.

The jury having found for the contestants, and their verdict having been approved by the trial judge, the first question for our consideration is whether there is any evidence to sustain the verdict and judgment.

There was some conflict in the evidence as to the testamentary capacity of the testator. While it appeared that he had acted rather oddly at certain times, and complained of a lack of memory and of suffering from vertigo, the preponderance of the evidence showed that he had the grade of mind usually found in men of his type, considering his age and physical condition.

The alleged later will made certain changes in the provisions of the first will, the most important of which was a change made in favor of John W. Barnes, the draftsman and executor of the will. To Barnes was devised a valuable piece of real estate, with a two-story building thereon, containing five' or six rooms, which Barnes testified was in payment to him for his services in drawing the will. There were no changes made as to the property left to the granddaughter, Jennie Bess and the nephew, John Elliott. Some of the original devises in the first will were omitted from the second will, and Mamie Gibson, a housekeeper for the testator, was added as a substantial devisee and legatee in the latter instrument.

A physical inspection of the typewritten will of 1932, offered for probate, consisting of three pages, shows on its face the following irregularities: (1) The first page is an original and the second and third pages are carbon copies; (2) different pens were apparently used in signing the names, different ink was used, and the fastening on the manuscript cover shows that more than one set of brads had been put therein; (3) between the lines of the paragraph near the bottom of the first page making the devise to Barnes and the short following paragraph there is a difference in spacing; and (4) all of the clauses containing the devises and bequests are numbered except the devise clause immediately following the devise to Barnes. The devise to Barnes is number three. The following devising clause on the first page has no number and the first devising clause on page two is numbered four.

Both of the attesting witnesses testified that they thought the will they signed contained only two sheets of paper, and that they signed on the second sheet. One said that each of the pages contained the same character of type, and that there was no mixture of original and carbon sheets. One of these attesting witnesses twice said in reply to questions from the trial judge that he couldn’t say that he saw Bess sign the paper. The draftsman and executor was not sure whether he had made original and carbon copies at the time the will was drawn.

The evidence points plainly to numerous suspicious circumstances. The second instrument contained devises different from the previously expressed intentions of the aged man. The physical appearance of the paper writing, the irregularities thereon, the conflicting testimony with reference to the number of pages it contained, and the devise to the draftsman and executor thereof, of valuable property far in excess of a proper measure of a fee, presented the ques-' tion whether these specific circumstances were sufficient to prove fraud. There is no evidence in the record whatever to show any obligation by Bess to Barnes, or any desire to reward him for friendship and affection. The devise to Barnes is so clearly disproportionate to the measure of services performed, and the extent of the estate involved, as to bear the closest scrutiny. There is no satisfactory explanation why the alleged will contained both original and carbon copies. The manner in which the devise to Barnes is squeezed in near the bottom of the first page between a numbered and an unnumbered clause, gives. further rise to suspicion.

There is here more than vague suspicion and surmise. Direct proof is not necessary to overthrow a will. Any facts and circumstances are sufficient as evidence that will satisfy the jury as reasonable and fair-minded men that the paper writing is not a true last will and testament.

We do not have to assume actual fraud. But suspicious circumstances place a burden upon the proponents of a will to make a satisfactory explanation. If they fail to carry that burden, they should not profit thereby. Redford v. Booker, 166 Va. 561, 185 S. E. 879, and cases therein cited.

We have repeatedly subscribed to the principle that where the draftsman holds a position of trust or confidence, and is himself made a major beneficiary in the will, his participation creates a presumption of fraud. The courts view such conduct with disfavor. It is necessary to overcome this presumption by evidence which satisfies the jury, and it is for the jury to determine whether the burden has been borne. Redford v. Booker, supra; Ferguson v. Ferguson, 169 Va. 77, 192 S. E. 774; 20 R. C. L. 145.

The proponents lay great stress on evidence that the will was found in a locked safe of Bess, where it is supposed to have been kept for several years. This was a matter of evidence for the consideration of the jury. The real question, however, for the jury was whether or not the paper writing found in the safe was the paper which the testator thought he was signing, or whether the several circumstances related in the evidence indicated that it had been tampered with or altered.

This is peculiarly a case where.there was a distinct advantage in having an opportunity to see and hear the witnesses testify. In. view of all the circumstances, the learned trial judge rightly placed the burden of an explanation upon the proponents of the will, and directed an issue of devisavit vel non to go to the jury. That proceeding was not intended to inform the conscience of the court, but its object was to solve the issue and the disputed facts. The value of the verdict is the same as upon the trial of an issue of fact in a common-law action. Redford v. Booker, supra.

The conflict in the evidence was resolved in favor of the contestants of the will. The verdict was approved by the trial judge. Under such circumstances and under familiar principles, we ought not to disturb the judgment unless there is a plain and palpable deviation from the evidence.

The probative value of the evidence was distinctly a question for the jury. Even though we take a view different from the jury, as to the measure of its value, we cannot challenge the jury for its view when there is support for their position.

Taking into consideration all of the surrounding circumstances, and the peculiar opportunity of the jury and trial judge to pass judgment on the case, we cannot say that the verdict was a plain and palpable deviation from the proof in the case.

There is no real question involved in the assignments of error with reference to the granting and refusing of instructions.

The trial court granted six of the seven instructions asked for by the proponents of the will. The six instructions set out the law fully, correctly and fairly with reference to testamentary capacity, the mode of execution of a will and the burden of proving fraud.

Error is assigned to the refusal to give instruction number 7 P. The record discloses an objection to the refusal to give this instruction, but no grounds of exception. The exception cannot now be considered, under Rule XXII of this court. However, there is no merit in the assignment of error. The instruction dealt with the question of sanity. Sanity was not an issue in the case. Ferguson v. Ferguson, supra.

The objection to instruction number 3 D, given at the request of the contestants is without merit. The instruction has been heretofore given and approved, and the reason assigned for the objection constitutes the reason for its being given. Huff v. Welch, 115 Va. 74, 79, 78 S. E. 573; Lester’s Ex’r v. Simpkins, 117 Va. 55, 58, 83 S. E. 1062.

Objection is further made to the giving of instruction 1 AD, which told the jury that the proponents of the will must “prove that the testator executed the paper writing offered as the will in the presence of two subscribing witnesses,” etc.

The grounds of the exception set out that the instruction “is confusing to the jury and it does not fully state the law.” The objection itself fails to set out the grounds with reasonable certainty, under Rule XXII of this court. The instruction does not fully and clearly state the law, if any conflict arose with reference to the meaning of the word “executed” unless the jury was otherwise told what that word meant.

The reply brief, however, states, and it is not denied by the plaintiffs in error, that by consent of the then counsel for both parties, the trial court permitted counsel to state to the jury that the word “executed” embraced either a signing of the will by the testator in the presence of witnesses, or the acknowledgment of his signature before the witnesses. That being true, it is difficult to see how the jury could have been misled, or any injury committed to the prejudice of the proponents of the will.

Our statutes prescribe and define the meaning of the word execute as applied to the making of wills. Virginia Code 1936, section 5229, is entitled “Mode of executing will prescribed.” Under this section, in addition to other requisites, it is required, if the will be not “wholly in the handwriting of the testator,” that the signature of the testator “shall be made or the will acknowledged by him in the presence of at least two competent witnesses, present at the same time. * * *” Each mode is a mode of execution. A proper execution of a will may be made in either manner, if the other requisites are complied with.

For these reasons, and because there has been one fair trial before a judge and jury, who occupied an advantageous position for the consideration of the facts and circumstances, we cannot say that the final judgment is plainly wrong, or that it is not supported by any evidence.

Affirmed.