dissenting.
I am conscious that no novel legal principles are involved here. The facts, however, are unique and unusual and since I am not in agreement with the majority opinion in either its statement of them or its sense of their effect, I am constrained to submit my own notion of their significance. 1 am the bolder to do this because, as I see it, the twice-attempted effort of one to exercise the solemn and sacred right of disposing of that which is his own has been frustrated. This cannot be accounted a matter of trivial concern.
The case presents the contest of the will of Ackey E. Bess, deceased, who was a citizen of the colored race of the city of Portsmouth, Virginia. The will was attacked on three major bases, which are, first, mental incapacity of the testator, second, undue influence, and, third, fraud.
The jury rendered a verdict that the paper executed on May 15, 1932, and offered as the will, was not the true will and testament of Ackey E. Bess. The trial court confirmed the verdict of the jury.
My awareness is very real of the strength of a litigant’s side of a case which is fortified by the verdict of a jury confirmed by the judgment of the trial court. We have held, in cases too numerous to cite, that where a case has been fairly submitted to a jury and a verdict fairly rendered, it ought not to be interfered with by the court, unless manifest wrong and injustice have been done, or unless the verdict is plainly not warranted by the evidence, or facts proven. The conditions enumerated which will warrant the court’s interference with the verdict and judgment of the court thereon are, in our judgment, present in this case.
We said, in the case of Southern Railway Co. v. Burton, 149 Va. 364, 141 S. E. 113, through the late Chief Justice Prentis, then president of the court (page 114) : “The courts have gone far, and we believe none further than this court, in enforcing the verdicts of juries; but there is a limit beyond which we should not go. That limit has been *12reached in this case. The burden is always upon the plaintiff claiming damages to show the amount with reasonable certainty. Here the jury have only been given vague suggestions and surmises, etc.
“The verdict is unsupported by and against the evidence and will be set aside.”
In the case of Meade v. Saunders, 151 Va. 636, 144 S. E. 711, 712, this is said: “Where it can be seen from the evidence as a whole that the verdict has recorded a finding in plain deviation from right and justice, the court may, indeed should, set it aside.”
The above cases were quoted with approval by this court, speaking through Justice Holt, in the case of Braswell v. Virginia Electric Co., 162 Va. 27, 173 S. E. 365, which also cited the case of Vandenbergh v. Buckingham Corp., 142 Va. 397, 411, 128 S. E. 561, 564, in which Judge Burks, (Jr.) said for the court: “Perhaps on a demurrer to the evidence by the defendant, we might be compelled to accept Vandenbergh’s statement of the waiver by Johnson, but not so under our present statute (Code, sections 6251 and 6363), when to do so would strain the credulity of the court to the breaking point, and require the entry of a judgment contradicted by every other fact and circumstance of the case, in conflict with the testimony of numerous witnesses of high character, and manifestly against right and justice. It is extreme cases of this sort that the statute was enacted to meet.”
Section 6363 of the Code, after declaring certain provisional conditions, concludes, “the judgment of the trial court shall not be set aside unless it appears from the evidence that such judgment is plainly wrong or without evidence to support it.”
The judgment may be set aside if it is without evidence to support it and it may be, also, set aside when it is plainly wrong, though it is supported by some evidence. Yanago v. Aetna Life Ins. Co., 164 Va. 258, 266, 178 S. E. 904.
This court, in the case of Nicholson v. Garland, 156 Va. 745, 158 S. E. 901, 903, cited the case of Bohlkin v. Ports*13mouth, 146 Va. 340, 348, 131 S. E. 790, 792, 44 A. L. R. 810: “It should be remembered that the duty of the trial judge to set aside the verdict of a jury where the same is not justified by the law and the evidence is just as imperative as is the duty to sustain the verdict where a contrary condition exists.”
As to the testamentary capacity of the testator in the present case, the positive, convincing and overwhelming evidence is that he possessed that requisite throughout his business life and particularly from the date of the will in question, May 15, 1932, to the time that he died. The two subscribing witnesses to the will testified to his sanity, as did Mamie Gibson, colored, witness for the contestants, with whom the testator boarded for five years before his death and who saw him daily. Blanche Floyd, colored, another witness for the contestants, testified that to her knowledge he was a man of sound mind and remained that way. John T. Fisher, colored undertaker, in whose home the testator was a frequent visitor, said that he was a sound, sane man up to the time of his death; that he had business transactions with him and that he was a sober and industrious business man.
T. B. Coker, a rental and real estate man who attended to the testator’s rental business for twenty-four years, testified that at the date of the will he was a man of sound mind and that even at the hospital, about two weeks before he died, he talked with the witness about repairs that he wanted made and that he did not veer from the subject he had in mind.
K. A. Bain, Jr., clerk of the trial court, accepted the testator as surety upon an injunction bond given on October 5, 1934, after he made oath as to his worth above any debts and applicable exemptions.
George R. Parrish, president of the bank with which the testator transacted his banking business, E. L. Lash, an insurance man and former bank president, and Dr. James Parrish, the physician who attended the testator for years and in his last illness, the four last witnesses being promi*14nent white citizens of the city of Portsmouth, all attested his sanity through the years embracing the period of alleged incompetency.
Against this testimony is that of Jennie Bess, one of the contestants, John Elliott, another contestant, and Charlie Jones, a witness for the contestants, all colored, whose testimony was vague, indefinite and lacking, I think, probative force.
There is no merit in the first basis of attack upon the will.
As to the second point made by the assailants, undue influence, there is no cogent and convincing testimony for its predication, and the evidence is utterly lacking to establish the contention of the existence of fraud.
We think the testimony of the witnesses who attested the will established the fact that it was legally executed. It may not be accepted as proof positive that the testator actually signed it in the presence of the attesting witnesses but beyond cavil he acknowledged it to be his will in their presence, which is a sufficient compliance with the statute.
The fact that the testator kept the will in his iron safe for some four and one-half years is almost a compelling circumstance of its approval by him. So far as the record discloses, no one knew the combination to the lock of his safe, which, upon his death, had to be opened by an expert and in the presence of Mamie Gibson, John Elliott and John W. Barnes, executor, when the identical will offered for probate was taken from the safe. Who had an opportunity to tamper with the will during the four and one-half years? Who had access to the safe but the testator ?
Another most effective fact that the will was as the testator wished it to be is that, with reference to his granddaughter and nephew, the previous will of 1927 carried the same provisions.
I see nothing inherently destructive of the paper as a valid testamentary one because of its mechanics, even if it were taken apart and fastened again by other rivets, and even if one page were an original typewritten paper and another happened to be a carbon copy, and if the ink used *15in one instance seemed paler than that in another place, and the written parts or features appear not to have been done with the same pen. I think none of these things should have been taken to be of sufficient potentiality as to cause the rejection of the will, because they may be so readily accounted for. No two people hold a pen exactly alike, they do not subject it to the same pressure. These circumstances may affect the impression of an observer, for a light pressure upon the pen, causing it to exude a small quantity of ink, would likely make it paler than a copious flow of the fluid.
Again, the testimony of Barnes, who wrote the will, is so perfectly direct and frank as to be convincing of its truth.
I shall make no reference to the instructions. We said in the case of Clinchfield Coal Co. v. Wheeler’s Adm’r, 108 Va. 448, 62 S. E. 269, 271: “We are further of the opinion that, in view of the salient facts established by the record, no verdict could be rightfully found for the plaintiff, under any instructions. It was, therefore, error for the circuit court to refuse to set the verdict aside as contrary to the law and the evidence.”
I think that the above is quite applicable to this case to the extent of the right of the contestants to recover.
The testator made provision, quite generous, for his nephew, who had been taken care of by him until he reached his majority, when he left him and joined the navy, while Mamie Gibson cared for him in his declining years. As to his reputed granddaughter, he questioned her legitimacy and racial status, which to the colored men of the type of the testator is a serious reflection and a stain as ineradicable as a leopard’s spot.
In my opinion, the verdict of the jury was plainly wrong, and it should have been set aside, and the refusal of the trial court to do so was error.