
    *Lamberts v. Cooper’s Ex’or & als.
    September Term, 1877,
    Staunton.
    Absent, Moncure, P., and Anderson, J.
    1. Appeal — Exceptions—New Trial.— On the trial of an issue of devisavit vel non, if one of the parties object to the admission of a person to testify on the ground of interest; or if objection is made to the admission of evidence of the character of a witness who had testified, on the ground that no proper foundation had been laid for its introduction; and the objections are overruled, and the witness and the evidence is admitted; and the objector does not except at the time, or give notice of his intention to except before the verdict is rendered, he waives the objection, and cannot rely upon it upon a motion for a new trial. The same rule applies upon the trial of such a verdict as applies on a trial at common law.
    2. Same — Same—Evidence,'}—Upon a motioii to set aside the issue on the ground that the verdict was contrary to the evidence, the court overrules the motion, and makes a decree according to the verdict, and the party moving files a bill of exceptions to the refusal of the court to set aside the verdict, and all tne evidence is set out in the bill of exceptions. The appellate couxt will reject all the parol evidence of the exceptor which is in conflict with that of the other party; and if upon the evidence of the appellee and written evidence of the appellant, the case is in favor of the ap-pellee, the decree will be affirmed.
    3. WillN — Attesting- Witness — Evidence. —The attesting witnesses of a wul who are introduced to prove the will was not properly executed, or the incapacity of testator, will not be excluded; but their evidence will be received with much suspicion.
    4. Same — Statute—Witnesses.—Though the statute requires at least two witnesses to a will, it may be proved by one of them, he proving the attestation of the other.
    *This case was heard at Wytheville, but was decided at Staunton. It was a suit in equity in the circuit court of Bland county brought in May, 1871, by Isaac P. and A. D. Rambert’ to set aside a will of Mary Cooper, deceased, which had been admitted to probate in the county court of Tazewell county in May, 1861. The grounds on which they assailed the paper were, first, that it had not been properly executed; second, that Mary Cooper was not of sound and disposing mind and memory at the time she executed the paper; and, third, that she was practiced upon and hoodwinked into the execution of the same. The legatees under the will answered, and denied the truth of all or any of the grounds stated in the bill for setting aside the will; and an issue devisavit vel non was directed to be tried at the bar of the court.
    On the trial of the issue the jury found a verdict in favor of the will; and thereupon the plaintiffs moved the court to set aside the verdict and grant a new trial of the issue, on the ground that it was contrary to both the law and the evidence. This motion the court overruled; and the plaintiffs excepted. The bill of exceptions contains all the evidence, and of course it is contradictory. The plaintiffs in the issue to sustain the will introduced William M. Bishop as a witness. He was the executor named in the will, and had qualified as such. His testimony went to prove the due execution of the will, and that Mrs. Cooper was of sound disposing mind and memory at the time.
    There were two other subscribing witnesses to the will, who were introduced by the contestants. They said they did not think Mrs. Cooper capable of making a will. The plaintiffs in the issue then introduced two witnesses — Elizabeth Ram-bert, who was objected to as incompetent on the ground of interest; but the court overruled the *objection, and no exception was taken to the ruling of the court; and James Cundiff, whose testimony as to the character of one of the contestants’ witnesses was objected to by them; but the court overruled the objection and admitted the evidence; and again no exception was taken to the ruling of the court.
    In .May, 1876, the cause came on to be heard, when the court dismissed the bill with costs. And thereupon the plaintiffs applied to a judge of this court for an appeal; which was allowed.
    Crockett & Blair and R. C. Kent, for the appellants.
    D. S. Pierce, for the appellees.
    
      
       Appeal—Exceptions—New Trial.—The rule laid down in the first headnote is affirmed in Core v. Marple, 24 W. Va. 355, citing the principal case, and telegraph Co. v. Hobson, 15 Gratt. 122; Terry v. Perry, 26 Gratt. 320.
    
    
      
      Appeal — Exceptions —- Evidence. — The principal case is cited in A case v. Capehart, 15 W. Va. 304, for the rule laid down in the second headnote. Citing also, Henry v. Davis, 7 W. Va. 715. See also, Dower v. Church, 21 W. Va. 63, citing the principal case, and Nicholas v. Kershner, 20 W. Va. 251. See Coffman v. Hedrick, 32 W. Va. 131, 9 S. E. 69.
    
    
      
      Wills Attesting Witnesses — Evidence, —-Upon the question of receiving in evidence the testimony of attesting witnesses tending to invalidate the will, see Cheatham v. Hatcher, 30 Gratt. 56 and note.
      
      Issue out of Chancery — Discretion of Court. — In Miller v. Wills, 95 Va. 350, the court says: “A court of equity has the right to order in a proper case one or more issues to be tried by jury, either in a court of common law or at its own bar. The issue, except where it is directed by statute, is a mere incident to the suit in chancery. It is directed merely to satisfy the conscience of the chancellor, and if he is not satisfied with the verdict, lie may set it aside and award a new trial of the issue, or he may disregard it and proceed to decide the cause without the intervention of another jury,” citing the principal case. See also, Fishburne v. Ferguson, 84 Va. 87, citing the principal case, and Johnson v. Harmon, 94 U. S. 271; Watt v. Stare, 101 U. S. 826; Reed v. Axtell, 84 Va. 236; McCully v. McCully, 78 Va. 162; Almond v. Wilson, 75 Va. 626. See Barton’s Ch. Pr. (2d Ed.) 430.
      Devisavit Vel Non. — In Hartman v. Strickler, 82 Va. 233, the court held that in ordering an issue devisavit vel non, the chancellor does not exercise any of the ordinary powers of a chancery court, but acts in obedience to the express mandate of the statu-ute; the object of the issue being to ascertain, by means of a jury trial, whether or not the will admitted to probate is, in whole or in part, the will of the decedent. And when that question is decided the function of the suit is exhausted, and the verdict is binding upon the court, unless for good cause shown it is set aside, either at the trial, or afterwards, on a bill of review, citing the principal case, and Malone v. Hobbs, 1 Rob. 346; Coalter v. Bryan, 1 Gratt. 18. See also, Kirby v. Kirby, 84 Va. 629, and Connolly v. Connolly, 32 Gratt. 657, and note, citing principal case. See Barton’s Ch. Pr. (2d Ed.) 603.
    
   Staples, J.,

delivered the opinion of the court.

This was an issue devisavit vel non. The jury having found in favor of the will, the appellants, who were the defendants below, moved the court to set aside the verdict, as manifestly contrary to the law and the evidence, and grant them a new trial; which .motion was overruled; and the appellants excepted. And thereupon the court certified all the evidence given on both sides.

In this certificate it was stated that the appellees, who were the propounders of the will, introduced Airs. Elizabeth Rambert as a witness (the widow of Joseph Rambert, one of the legatees under the will) to whom the appellants objected as incompetent; but the court overruled the objection and permitted the witness to testify.

This ruling of the court is one of the errors assigned in the petition for an appeal. It does not appear, however, that the appellants excepted to the opinion of the court permitting the witness to testify, or intimated a purpose or desire to save .the point. The fact that objection *wqs made at all to the witness only appears from the certificate of the evidence given by the judge upon overruling the motion for a new trial. Conceding that the court erred in its decision, can the appellants rely upon it here as ground of reversal? In Peery’s adm’r v. Peery, 26 Gratt. 324, the latest case upon this point, it was held to be the established rule of the court, that notice must be given at the time of the ruling, or at least before the verdict, that the point will be saved, although the bill of exceptions may - be drawn up and signed at any time during the term. See the cases there cited in support of this view.

It is said, however, that upon an issue out of chancery, it is unnecessary to take a bill of exceptions; that upon the trial all the proceedings are part of the record in chancery; that the court which tries the issues only certifies the verdict, and that carries with it all the proceedings belonging to the verdict, the empanelling of the jury, the points ruled by the court at the trial, and, in short, anything which is regularly made a part of the record. In support of this position the counsel rely upon the case of Watkins and wife v. Carlton, 10 Reigh 560. That case does not, however, decide that a .bill of exceptions is not necessary i upon the trial of an issue out of chancery. ' It merely decides that when exceptions are filed to opinions of the court and made a part of the record, and the court of law certifies the verdict, although it does not expressly certify the exceptions, yet all the proceedings upon the trial of the issues spread upon the record thereof, constitute part of the certificate of the verdict, and with it becomes part of the chancery record. No case has been cited in which it is held that upon the trial of an ordinary issue out of chancery it is unnecessary to take a bill of exceptions to an objectionable tul-ing of the court with respect to the admissibility of ’’“evidence, or at least in some form to indicate a purpose to insist upon the point as ground of error.

In Fitzhugh’s ex’ors v. Fitzhugh, 11 Gratt. 210, it was held that upon an issue out of chancery the verdict of the jury is conclusive, unless there is an exception spreading the facts upon the record. If in an action at common law a party is held to have waived his objection by his failure to save the point in due season, it is difficult to see why he should not be held equally to have done so in a like case upon the trial of an issue out of chancery. The very same principles, it would seem, must apply in both cases. However this may be, and without undertaking to decide the point, it is sufficient to say that the rules which govern upon an issue out of chancery for the trial of a disputed fact to satisfy the conscience of. the chancellor, are very different from the rules which govern upon an issue devisavit vel non. In the former case the issue is a mere incident to the suit in chancery. It is directed merely to satisfy the conscience of the chancellor. If the issue is tried before a court of common law, the latter court is but ancillarv to the court of chancery, it has no jurisdiction except what is conferred by the chancellor. It may certify against the verdict, if, in its opinion, contrary to the evidence; but it cannot grant a new trial. If the chancellor is not satisfied with the verdict, he may set it aside and award a new trial of the issue, or he may proceed to decide the cause without the intervention of another jury; and although there may have been a misdirection by the common law court, the Verdict will not be disturbed if it appears to be right upon a consideration of the whole case. The principles of law governing in this class of cases are fully discussed in Watkins and wife v. Carlton, 10 Leigh 560; Brockenbrough’s ex’or v. Spindle’s *adm’r. 17 Gratt. 21; Powell and wife v. Manson, 22 Gratt. 177.

On the other hand, the issue devisavit vel non is a statutory proceeding. “Tt is the sole object, and not the mére incident of the suit.” It is not intended to inform the conscience of the court, which is bound to decree according to the verdict, unless for good cause shown a new trial is granted. Tt is a probate jurisdiction exercised by the jury in order to the final probate of the will.

In Coalter’s ex’or v. Bryan and wife, 1 Gratt. 18, 85. Judge Baldwin, delivering the opinion of the court, said: “The equitable becomes for the occasion a legal forum, and the proceedings are according to the course of the common law. In practice, the mode of saving question decided by the judge during the trial is the same, to-wit: by bill of exceptions. * * Errors committed on the trial of the issue cannot be reached directly by an appellate forum, but must form the subject of a motion to the chancellor in the chancery cause for a new trial, and if improperly refused by him, an appeal lies from his decree.” iSee also Malone’s adm’r and others v. Hobbs and others, 1 Rob. R. 346, 389. _

_ According to these principles it would seem to be clear that upon the trial of an issue devisavit vel non, the mode of proceeding upon the trial is substantially the same as upon the trial of common law actions. In this case, therefore the appellants having submitted to the ruling of the court against them without exception, cannot now be heard to insist upon the error, if such there be, as ground of reversal. ¡ What is here said equally applies to the testimony of another witness, James Cun-difif, which was objected to upon the ground that a proper foundation had not been laid for its introduction; *but no exception was taken to the ruling, nor any purpose expressed to save the point.

The last assignment of error to be considered, is in the refusal of the court below to set aside the verdict as against the evidence, As already stated, the bill of exceptions contains the testimony, and not the facts. The application to this court for a new trial is therefore subject to the rule which forbids' an appellate tribunal to reverse the judgment, unless by rejecting all the parol evidence for the exceptors and giving full force and credit to that of the adverse party, the decision of the court below still appears to be wrong. Bull’s case, 14 Gratt. 621.

The appellees introduced as a witness, Wm. M. Bishop, the scrivener of the will, the executor named therein and an atteslmg witness, who proved the execution of the instrument by the testatrix and her capacity to make a will; and there rested their case. The appellants then read to the jury the depositions of the other two subscribing witnesses, who testified that the will was not duly executed, and that the testatrix was not at the time of sound disposing mind and memory. Other witnesses were introduced by both parties upon the (juestiou of testamentary capacity, and, as is usual in such cases, their testimony is conflicting. If all the evidence of the appellant in conflict with that of the appellee be rejected, there cannot be a question as to the correctness of the verdict. If all the evidence adduced on either side be considered, it still appears there is such conflict in the opinion and recollection of the witnesses in regard to the capacity of the testatrix and the due execution of the instrument as would preclude this court from any interference with the finding of the jury.

Although in a court of probate it has been held to be necessary to examine all the attesting witnesses to a will, *or the number required by law, if to be had, it is not necessary that the material facts shall be proved by more than one. Any one of them may prove the due execution of the will and its attestation by himself and the others; and if his testimony be satisfactory, it is sufficient. Pollock and wife v. Glassell, 2 Gratt. 439-460. In Dudleys v. Dudleys, 3 Leigh 436, it was held that where the testimony of one of the attesting witnesses is directly contradicted by' another, and the county and circuit courts both give credit to the witnesses for the will, this court, upon a mere question of credibility, will always presume that inferior courts which saw and heard the witnesses examined, decided correctly. A person who ' signs his name as a witness to a will, by his-act of attestation solemnly testifies to the sanity of the testator. If he should afterwards attempt to impeach the will upon the ground of the want of sufficient capacity, his evidence will not be positively ‘ rejected, but it is received with the utmost caution. If the jury in this case viewed the testimony of the adverse witnesses with some degree of suspicion, and gave credit rather to the witnesses sustaining the will, upon the score of intelligence or. integrity, this court cannot say from anything contained in the record, they erred in their conclusions; more especially as their finding is approved by the judge presiding at the trial. Ford v. Gardner, 1 Hen. & Munf. 72; Jesse v. Parker, 6 Gratt. 57.

Upon the whole, we are of opinion the decree of the circuit court must be affirmed.

Decree affirmed.  