Tucker v. Sandidge

Citations

• 85 Va. 546
• 8 S.E. 650
• 1888 Va. LEXIS 70

Syllabus

<p>1. -Wills—Testamentary capacity.— Testator, in making bis will, must be capable of understanding the nature of the business he is engaged in, and the elements his will is composed of, and the disposition of his property thereby provided for, both as to the property and the persons he means to give it to, and how it is to be disposed of among them.</p> <p>2. Idem—Ontis probandi.—Burden of proving capacity is on propounder of the will. Nothing short of clear and convincing evidence will suffice. Riddell v. Johnson, 26 Gratt. 152.</p> <p>3. Idem—Execution—Attesting witnesses—Rule—Exception.—General rule is, that one signing his name as witness to a will, by this act solemnly testifies to testator’s sanity. If afterwards he attempts to impeach the will’s validity, his testimony is not to be positively rejected, but received with the most scrupulous jealousy. Young v.- Barner, 27 Gratt. 103. But this rule ought not to be rigorously applied where such witnesses, suddenly called upon by the propounder to attest the will without time for due deliberation, testify in his behalf and are bound to detail the circumstances, affording the only reliable data from which the court can deduce its conclusions.</p> <p>4. Idem—Presence.—The presence of the testator wherein the statute requires attesting witnesses to subscribe their names as such to a will, means the testator’s “ conscious presence.” Baldwin v. Baldwin, 81 Va. 405.</p> <p>5. Appellate Court—Two verdicts—Rule under Code 1887, $ 3484.— Where, at trial, under Code 1873, ch. 118, $ 32, jury finds against the will, verdict is set aside on motion of plaintiff. At second trial jury finds . for the will. Motion for defendants to set aside verdict is overruled, and the defendants having excepted, and the evidence (not the facts) certified, on appeal;</p> <p>Held:</p> <p>Under Code 1887, $ 3484, plaintiff in error’s exception must, in considering the decision of the court below setting aside the first verdict, be treated as a d