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Montague v. Allan's Executors.

Montague V. ALLAN'S EXECUTORS.

(78 Va. 592.)

Will-knowledge of contents—interested draftsman.

The testator's knowledge of the contents of the will may be shown by circumstances.

A will is not invalidated by the facts that it was drawn by a confidential friend of the testator and that his wife was a beneficiary.

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CTION to annul a will.

will was sustained below.

The opinion states the case. The

Joseph Christian and John Lyon, for appellants.

Jones, Kean & Nelson, for appellees.

FAUNTLEROY, J. On the 2d of April, 1881, Mrs. Louisa G. Allan, of Richmond, executed and acknowledged her last will and testamenta paper drawn by Mr. George W. Mayo, who was named as one of the executors, and whose wife was a large beneficiary. The testatrix died on the 24th of the same month. The will was admitted to probate by the Chancery Court for the city of Richmond April 27th, 1881, when George W. Mayo qualified as

executor.

On September the 5th, 1882, Miss Genevieve Allen (who since the institution of the suit has intermarried with D. P. Montague) exhibited her bill in the said Chancery Court, in which, after reciting the probate of the paper aforesaid, and stating that she is one of the three heirs-at-law and distributees of Louisa G. Allan, deceased, she alleged that Mrs. Allan, when she signed and acknowledged the will or testamentary writing aforesaid, was insane; that she was not of sound mind; that she was mentally incompetent to make a lawful will, and that the paper in question was procured by George W. Mayo, who was the confidential agent and adviser of the testatrix, by the selfish exercise of undue influence over her mind, enfeebled by injuries, disease and age.

Mayo, his wife, and some other defendants answered the bill; the cause was matured; and the chancellor directed the trial of an issue, devisavit vel non, at the bar of the court. At the close of the evidence, of which a great deal, both oral and written, was

Montague v. Allan's Executors.

introduced before the jury, the plaintiffs in the issue (the appellees here) requested the court to give certain instructions, which the court did give, without objection or exception from the defendants in the issue (the appellants). Upon the trial of the issue the jury failed to agree upon a verdict; but upon a second trial, at a subsequent term of the said court, the jury found a verdict sustaining the said paper of April 2, 1881, in all its parts and provisions, as the true last will and testament of Louisa G. Allan, deceased. Upon the recordation of this verdict the defendants in the issue moved the court to set aside the verdict of the jury and to grant a new trial on the said issue; and the court took time to consider thereof.

On the 24th of February, 1883, the court overruled the said motion to set aside the said verdict of the jury, and to grant a new trial on. the issue directed in the cause; and pronounced its decree in conformity with the said verdict of the jury, that the will of the testatrix, Louisa G. Allan, admitted to probate in the said court on the 27th day of April,. 1881, is the true last will and testament of Louisa G. Allan, deceased; and the court dismissed the bill of the complainants with costs.

From this decrce the appeal is taken, and this court is now to decide whether there is error in the proceedings of the court below as disclosed by the transcript of the record in the cause.

[Omitting minor matters.]

But the appellants contend that the decedent, "at the time of executing the said paper," did not know the contents of the said paper, and did not understand the disposition thereby made of her property; that she was subjected to the undue influence of George W. Mayo, who drew the will, who was present and procured its execution against her free will and purpose; that the jury in finding for the will disregarded the instructions of the court, and found a verdict plainly contrary to law, as expounded, and the facts as certified by the court.

The court which gave the instructions to the jury approved the verdict found, and refused to set it aside, as being neither contrary to the law nor the evidence which had gone to the jury. Judge CHRISTIAN, speaking for this court in Blosser v. Harshbarger, 21 Gratt. 216 (citing Krugh v. Shanks, 5 Leigh, 598), says: "In the Appellate Court there is superadded to the weight, which must always be given to the verdict of a jury, fairly rendered, that of the VOL. XLIX-49

Montague v. Allan's Executors.

opinion of the judge who presided at the trial, which is always entitled to peculiar respect upon the question of a new trial. The whole case was one peculiarly proper to be submitted to the jury, who are the proper judges of the weight of the evidence, and the verdict having been fairly rendered, and approved by the judge before whom the case was tried, it would be a violation of well-settled principles of law so often adjudicated by the courts, as well as an unwarranted abuse of the appellate powers of the court, to set aside the verdict and judgment, because the judges of this court might not concur with the verdict of the jury, upon the facts as they are certified here." Judge SCOTT, in Grayson's case, 6 Gratt. 712, said where " some evidence has been given which tends to prove the fact in issue, or the evidence consists of circumstances or presumptions, a new trial will not be granted, merely because the court, if upon the jury, would have given a different verdict."

In Patteson v. Ford, 2 Gratt. 24, Judge BALDWIN said: "Much respect is due to the opinion of the jury, whose province is to weigh conflicting evidence, to scan the credit of witnesses, to estimate the force of circumstances, probabilities and presumptions, and to canvass intentions and motives. This is so evident, that the courts habitually defer to the conclusions of juries upon matters of fact, though opposed to their own; and hence the rule not to disturb a verdict, unless in case of plain deviation from the evidence."

It is contended by the appellants that beside the fact that the will was written by George W. Mayo, he produced it on the occasion of its execution, and Mrs. Allan signed and acknowledged it without reading or having it read to her.

It is true that the will was not read by or to Mrs. Allan when she signed it; but it does not therefore follow that she had not read it and was not fully aware of its contents and provisions. The jury must be satisfied that the testatrix knew the contents of the will at the time of signing and executing it, and they were in this case so explicitly instructed by the court; but the authorities are full and conclusive that they may be so satisfied, and that such knowledge may be proved by circumstantial evidence, and that direct evidence is not indispensably necessary. In the case of Barry v. Butlin, 1 Curtis, 6 Eng. Ecc. 417, PARK, B., said: "Nor can it be necessary that in all such cases, even if the testator's capacity is doubtful, the precise species of evidence of the deceased's knowledge of the will is to be in the shape of instructions for or reading over the

Montague v. Allan's Executors.

instrument. They form no doubt the most satisfactory, but they are not the only satisfactory description of proof by which the cognizance of the contents of the will may be brought home to the deceased."

In Crispell v. Dubois, 4 Barb. 393, HARRIS, J., after stating that it would have been more satisfactory to have had evidence that the testatrix gave instruction for drawing the will, or that it was read by or to her, says: "But although such evidence would unquestionably have been the most satisfactory, I am not prepared to say that it was indispensable. I have been able to find no case in which this particular description of proof has been required. On the contrary, I understand the doctrine to be well settled that while it is necessary in such cases to prove that the will is the spontaneous intention' of the testator, such proof may be made out in any mode in which his real intentions can be ascertained."

In Raworth v. Marriott, 2 Eng. Ch. 644, Sir JOHN LEACH, M. R., held that the jury who tried the validity of the will must be satisfied that the testator knew of its contents, but their consideration need not be confined to direct evidence, and they may find for the will on circumstantial evidence only.

In Donney v. Murphey, 1 Dev. & Batt., 91-2, RUFFIN, C. J., says: "There are other circumstances equally satisfactory-such as the conformity of the will to previous or subsequent declarations, or to such dispositions as the party would be prompted by natural affection to make."

The appellants insist that Mayo's confidential relations to the testatrix, coupled with the fact that he wrote the will, and that his wife is the principal beneficiary, raise a conclusive presumption against the validity of the paper. Such circumstances certainly engender suspicion and arouse the vigilance of the court and jury, and if unexplained or repelled they would annul the transaction. There is a well-recognized distinction between the rule affecting testamentary gifts and gifts inter vivos; and it is now well settled by an unbroken current of authority -- both English and American - that a will is not invalidated by the mere fact that it was written by the attorney, agent, physician, priest or other confidential adviser of the testator, who is himself a beneficiary. Daniel v. Hill, 52 Ala. 430 Crispell v. Dubois, supra; Barry v. Butlin, supra.

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In the light of these authorities the facts appearing in this rec

Dun v. Seaboard and Roanoke Railroad Company.

ord afford satisfactory evidence that Mrs. Allan, the testatrix, knew the contents of the will when she executed it.

They show a testatrix of sound mind and strong will; they disclose testamentary dispositions in accord with her affections and with her repeated declarations; they prove that she marked her pictures preparatory, as she said, to disposing of them, and that her will refers to and disposes of them by means of marks; that she acknowledged the paper to be her will after its execution, and that it remained in her possession from the time of its execution to the day and event of her death. It is but just to George W. Mayo to add, that although the will was written by him, and his wife is the chief beneficiary under it, yet that wife was the child of the beloved and favorite sister of Mrs. Allan, lived in her home with her, and was unto her as a daughter; and that in fact she takes no greater benefit under the will established than she did under the olograph will of 1876.

We are of opinion that the paper executed by Mrs. Allan for her will April 2, 1881, and duly probated as such April 27, 1881, in the Chancery Court of Richmond city, is the true and last will of the testatrix aforesaid; that the verdict of the jury was right; that there is no error in the decree appealed from, and that the same must be affirmed.

Decree affirmed.

DUN V. SEABOARD AND ROANOKE RAILROAD COMPANY.

(78 Va. 645.)

Negligence - contributory — arm out of car window.

To ride with the arm outside the window of a railway car is fatal contributory negligence, unless it appears that the defendant knew the danger and omitted to warn the passenger

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CTION for personal injury by negligence. The opinion states the facts. The defendant had judgment below.

Borland & Brooke, for plaintiff in error.

Holladay & Gayle, for defendant in error.

See Summers v. Crescent City R. Co. (34 La. Ann. 139), 44 Am. Rep. 419.

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