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INDEX TO WITNESSES
FOR EXECUTRIX DIRECT CROSS REDIRECT RECROSS
Jon Michael Casey
Irma Davenport
REBUTTAL
FOR PETITIONER
4 25 -- --
37 62 65 --
Danny Bruce Evans 67 71
2
INDEX TO EXHIBITS
FOR EXECUTRIX MARKED ADMITTED
Ex. No. 2 - bank statements 75 75
1
9:40 a.m.
2 THE COURT: Please be seated. This is the
3 time and place for a resumption of the hearing in the matter
4 of the Estate of William I. Evans. At the time of
5 adjournment on June 29, 2011, the Petitioner had completed
6 the presentation of his case-in-chief, and the
7 Executrix/Respondent had presented the testimony of her
8 first witness, Bernard Davenport. Please proceed.
9 MR. MATEYA: Your Honor, at this time I would
10 like to call Jon Casey to the stand.
11 THE COURT: Okay.
12 Whereupon,
13 JON MICHAEL CASEY
14 having been duly sworn, testified as follows:
15 DIRECT EXAMINATION
16 BY MR. MATEYA:
17 Q Mr. Casey, can you give us your full name,
18 please?
19 A My full name is Jon Michael Casey, and Jon is
20 with no H.
21 Q And your address?
22 A 128 West Hunter Road in Carlisle, 17015.
23 Q And where are you --
24 THE COURT: Where is that? Hunter Road?
25 THE WITNESS: Hunter Road? South Middleton
4
1 Township.
2 THE COURT: Okay. Is that a Carlisle
3 address?
4 THE WITNESS: Yes.
5 THE COURT: Okay.
6 BY MR. MATEYA:
~ Q And where are you employed?
g A I am employed for a publishing company, Lee
9 Publications. They are out of Palatine Bridge, New York,
10 and I work from my home.
11 Q Okay. What do you do for them?
12 A I am an editor of three of their trade
13 magazines.
14 Q Okay. Tell me, Mr. Casey -- well, first off
15 the address that you mentioned, where is that situated in
16 relation to the home of William Evans?
1~ A It is right next door --
lg Q Okay.
19 A -- to his previous home. We live in his
20 home. It was his home when we moved in, and he moved next
21 door to the new house that he had built.
22 Q Okay. So is that the way you got to know
23 Mr. Evans, just through the rental?
24 A Yes. I got to know him initially through our
25 -- the pastor of our church who had rented a property --
5
1 another property of his, and we were in the market for a
2 rental property and so he put me in touch with Mr. Evans.
3 Q How long would you say you knew Mr. Evans
4 before his passing?
5 A Before his passing? I don't remember what
6 year he passed away, but we have known him since 1998.
~ Q Okay. That is fine.
8 A Yeah.
9 Q Okay. So you have known him since '98. I
10 want to talk to you about the year 2005.
11 A Okay.
12 Q To the best of your recollection, okay? And
13 what I am interested in, of course, is things that you know
14 firsthand.
15 A Um-hum.
16 Q Okay. How often -- if you can go back to
17 2005, how often would you say that you would see Bill Evans?
18 A I would attempt to see him every day that I
19 was there.
20 Q Was it a friendly relationship?
21 A Oh, yeah. Just, you know, with him being a
22 senior citizen and us knowing his -- you know, his past up
23 to that point in 2005, he lived alone and so I was always
24 concerned that, you know, if he should pass away one day
25 that I would like to, you know, know that he's not well.
6
Q Okay.
1
2 A And so I made an effort every day to just at
3 least know that he was up and around and out, and so on most
4 occasions I would be able to see him outside the house at
5 least once a day.
Q Okay. And would you say that you tried to
6
~ keep that level of contact up from 2005 up to when he passed
g in September of 2008?
9 A Certainly. Yeah.
Q Okay. Did Mr. Evans ever just sort of show
10
11 up casually at the door at your house?
12 A Never.
Q Was it always a phone call first?
13
A A phone call or he would -- if we would see
14
ou know, ask to come in, but I
15 each other outside he would, y
16 don't recall him actually coming into our house more than
1~ three or four times in the entire time that he was alive.
18 Q Okay.
19 A Just to repair maintenance items. It was his
20 policy not to intrude on his tenants.
Q All right. Very good. And did you know his
21
22 wife Gisela?
A We knew her for the first few years that she
23
24 was there and got along well with her, and one day she
25 departed and so that -- we hadn't had any contact with her
7
1 since then.
2 Q Okay. Let's talk about that. You said one
3 day she departed. Do you recall that departure, what she
4 did?
5 A I remember going out, and my routine each day
6 -- or back then anyway was to go into the post office in
7 Boiling Springs every day. I got my company mail there.
8 Q Okay.
9 A And so I went out one mornin
g, and there was
10 a pick-up truck backed up to the front porch and stuff was
11 being loaded into the -- into this vehicle, and I didn't
12 really ask any questions or pay any attention, but then
13 found out within the next day or two that she had left.
14 Q Okay. And the truck then -- at that time you
15 didn't know if it was Bill or Gisela?
16 A I didn't know what was happening, not really,
17 no.
18 4 Okay. Do you recall if you saw Bill there at
19 the time?
20 A I don't recall seeing him there, and in the
21 aftermath he was alarmed that she had left and he was away.
22 He had worked for Lawns Unlimited hauling mulch, and so he
23 was out on the job somewhere and he told me that he got a
24 phone call that she said she was leaving and by the time he
25 got back home she was gone so...
8
1 Q So let's use that time when you saw someone
2 loading up the truck. Use that sort of as a point of
3 reference.
4 A Okay.
5 Q After 2005, after that event, how often did
6 you see Bill?
7 A Every day that was feasible. When he was
8 hauling mulch there were a lot of times that he would come
9 and go before I would be -- you know, would be out and
10 about, but nevertheless his vehicles would be there and so I
11 would have no concern.
12 Q Okay. And again, after that time when you
13 spoke with Bill what was your impression of him, and
14 specifically what was your impression of his mental
15 stability?
16 MR. FINCK: Objection, Your Honor. The
17 witness has testified he has seen Bill, he hasn't testified
18 yet that he has had any conversations with Bill.
19 Accordingly I believe the counsel is leading.
20 MR. MATEYA: I think actually he did say that
21 he spoke to him just about every day. I would infer
22 conversation from having said he spoke to him.
23 THE COURT: The objection is overruled.
24 BY MR. MATEYA:
25 Q Okay. I will ask the question again.
9
1 A Okay.
2 Q When you spoke with Bill -- and again, we
3 will use that point of reference.
4 A Um-hum.
5 Q So after that loading of the truck, what was
6 your impression of him, and specifically what was your
~ impression of his mental stability?
$ A Well, to address the issue of conversations,
g the conversation with Bill was usually listening to Bill.
10 Q Okay.
11 A There wasn't much contribution on my part.
12 Usually I might ask him a question as to how he was doing
13 and he would launch into -- at that time he was -- you know,
14 men don't know how to share their grief, and so he was
15 grieving over the departure of his wife, and, you know, I
16 minister men in a ministry that I am involved in so I
1~ understand how they think and how they behave through the
lg years of experience that I have, and men don't know how to
19 deal with their emotions and so he was baffled that she
20 would leave, and he would ask me, you know, haven't you ever
21 told your wife if she doesn't like it she can leave, and I
22 said, no, actually I haven't. She told me that a few times,
23 but, you know, I have had that opportunity, but I never gave
24 that to her.
25 So there was contention there, and he would
10
1 go on then to describe what was going on in his heart, how
2 he was feeling. He felt betrayed and he felt like, you
3 know, she left with, you know, all this stuff and he --
4 Q Okay.
5 A He thought he had provided for her and so his
6 distress was -- you know, was something that he repeatedly
7 shared, and, you know, we would try to encourage him to, you
8 know, not hold a grudge and just kind of move on, and so he
9 was -- he tended to be suspicious. He was concerned that
10 she would come back and take more stuff.
11 Q Okay.
12 A And he was concerned that her departure was
13 over financial issues.
14 Q Okay.
15 A And -- go ahead, I'm sorry.
16 Q No. I'm sorry. I didn't mean to interrupt
17 you. Well, I'm sorry. Were you finished?
lg A Sure, yeah. I don't know to what extent you
19 want me to go into all of that.
20 Q Were you concerned about what you saw in his
21 behavior? Did it concern you that he perhaps was not
22 mentally stabl e?
23 MR. FINCK: Objection, Your Honor, leading.
24 MR. MATEYA: Can you give me -- I'm sorry.
25 THE COURT: Go ahead. Rephrase the question,
11
1 if you want.
2 MR. MATEYA: Sure.
3 BY MR. MATEYA:
4 Q Would you give me your impression of his
5 mental stability?
6 A He was normal.
7 Q Did you ever see Bill with a gun?
8 A No.
9 Q Okay. Now, you have already mentioned that
10 he liked to speak. Was he a very clear speaker? Could he
11 get his points across fairly clearly?
12 A I would say so. Being someone who has to
13 deal with conveying thoughts, you know -- being an old
14 timer, you know, he would tend to ramble. He would go from
15 one -- you know, chased onions is what I call it. He would
16 go from one topic to the next, to the next, and then it
17 would remind him of something else, and he would go on with
18 that. And so I would have to, you know, stop him when it
19 was time to move on, but he was coherent and rational and
20 had a good memory, and, you know, talked about the past and
21 stuff like that so...
22 Q Okay. And now after that time when you saw
23 Gisela's car -- or the truck there and the truck being
24 loaded, going forward did you ever see her car there again?
25 A No.
12
1 Q Okay. And back in 2005, going forward, was
2 he a good landlord?
3 A Excellent.
4 Q And I believe you already mentioned that he
5 would come into the house occasionally to do repairs?
6 A At our request, yeah, because
you know,
7 being lifelong renters we treat their property as though it
8 is our own so a lot of the things that would come to pass we
9 would usually try to repair ourselves and pay for ourselves,
10 but on the major issues we would ask him to intervene and
11 take care of that so...
12 Q Okay. And did he use a -- like a property
13 management company to take care of -- you know, you pay the
14 rent to a company or --
15 A No. I just give it to him every month, stick
16 it in his door.
17 Q And how about repairs? Did he bring
18 repairmen in or would he try to do it all himself?
19 A He would endeavor to do it if he could, but
20 in most cases somebody else did the work. He replaced the
21 faucet one time and -- but the air conditioning was done by
22 a contractor and the garage door -- Danny helped with the
23 garage door when that spring broke whatever year that was.
24 Q And I am going to just go back one question.
25 I asked you about paying the rent to him. Did you continue
13
1 to pay the rent to him until he passed in September of 2008?
2 A Every month.
3 Q And so he was managing that, as far as you
4 could see, on his own?
5 A Oh, sure.
6 Q Okay.
7 A And when we would incur debts, I mean he
8 would -- I would give him the bills and he would pay us back
9 so...
10 Q He would take care of that himself?
11 A Yeah. When we did the carpeting, you know,
12 we volunteered to recarpet and he insisted that, you know,
13 he pay at least half, and so we agreed to half and --
14 Q Okay. Would you say he was a strong man?
15 A Physically?
16 Q Yes.
17 A Oh, in deed. You know, he would come over
18 and clean the gutters. You know, I didn't have to get up
19 and clean the gutters. He would cut down, I don't know, two
20 or three trees on the property over the years. No, more
21 than that, four trees.
22 Q Was that 10 years ago, 15 years ago or was
23 that recent?
24 A No, that was like a year or two before he
25 died.
14
1 Q Okay.
2 A He died in 2008 in September?
3 Q Right.
4 A Yeah, he would have -- in that spring he
5 would have come over and cleaned the gutters. He would even
6 go so far as to -- as the rains would start, with all of
7 those trees around, he would come over and clean the gutters
8 as it would start to rain, and I was always concerned that,
9 you know, he would slip off the ladder or something, but,
10 you know...
11 Q What was your impression of Bill as far as
12 was he passive or was he a strong-willed person?
13 MR. FINCK: Objection, leading.
14 THE COURT: The objection is overruled.
15 BY MR. MATEYA:
16 Q You can answer the question.
17 A He is a strong-willed individual, yes.
lg Q Well, you are chuckling. Why?
19 A Well, who isn't, you know. But, yeah, he was
20 -- you know, never towards us, not really. I mean he was
21 always amenable to us, but Bill did it his way and there
22 were -- you know, there were times when you would think
23 there might be a better way to do something, but he had --
24 you know, he had his way of doing it so that is what he was
25 going to do.
15
1 Q Okay. So was he easily swayed or
2 manipulated?
3 A Never by me.
4 Q Okay.
5 A Not that I am aware of.
6 Q All right. I am going to move forward and we
~ are going to start, let's say, in the spring of 2006. So
g maybe somewhere about a year after that event we talked
g about.
10 A Okay.
11 Q Until his passing in 2008. I want to talk
12 about that timeframe.
13 A Okay.
14 Q Did your visits with Bill and your seeing him
15 continue more or less the same?
16 A Pretty much the same. As time passed I
1~ didn't travel as much so I was home a little more often, but
18 he had -- he had stopped hauling mulch. When she sued for
19 divorce he stopped hauling mulch because he didn't want that
20 income to reflect on whatever goes on when you get a divorce
21 and so he wasn't going to -- he had to give her a certain
22 percentage of that income, and so he would tell me that he
23 is not hauling mulch anymore because he didn't want that
24 income to go to Gisela.
25 Q Okay.
16
1 A So when you are talking about strong-willed,
2 you know, he was determined that she wasn't going to --
3 Q Okay.
4 A -- get any more than the law allowed so...
5 Q And you told us a little bit about how he
6 liked to talk. Would you say that that stayed the same
7 through the end of his life or?
8 A Oh, sure. Yes, he was always willing to tell
9 us, you know, what he was involved in and what his feelings
10 were about that the best he could.
11 Q Okay. And I guess I am going to ask you to
12 get a compari son from the earlier answer that you gave to
13 the last few years. He was still strong physically?
14 A He was out weeding in his front yard. He
15 mowed the gra ss and was weeding his -- the flowers in front
16 of his house on the evening that he died. So, yeah, I mean
17 physically he was strong.
18 Q Okay. Do you know if he had children?
19 A To my recollection he had Danny, his son, and
20 he had anothe r son that I think passed away many years ago.
21 Q Okay.
22 A That is the extent that I am aware of.
23 Q And you recognize Danny here?
24 A I recognize Danny.
25 Q Okay. Did you ever see Danny at Bill's
17
1 house?
2 A Three or four times, yes.
3 Q Did you meet with him?
4 A We met a couple of times, and as I say he
5 came over to help Bill replace -- the spring on our garage
6 door had broken and he happened to be in town during that
7 time and so Bill had -- he and Bill together replaced the
8 spring on our garage door.
9 Q Okay. Do you know if Bill had any brothers
10 and sisters?
11 A I know that he had brothers and sisters. I
12 don't know how many. I think maybe like three sisters and a
13 brother or two, but, you know, I couldn't give you an exact
14 number.
15 Q Do you know much about his relationship with
16 them?
17 A All I know is that on a regular once a year
18 kind of thing he would go down to southern Virginia wherever
19 they lived -- wherever the family lived and would
20 participate in a family reunion kind of a thing or a
21 birthday celebration or something like that.
22 Q Do you recall ever seeing any of his siblings
23 at his house?
24 A I remember one event there was a gray car and
25 there were three or four people and we were introduced, but
18
1 I'm not good at remembering names. I meet so many people
2 that I just am not diligent in trying to remember names
3 so...
4 Q Do you remember Bill talkin to
g you about his
5 siblings?
6 A Other than when he was making the decision
7 about the estate you mean or?
8 Q I am talking about --
9 A Just any time?
10 Q Yes.
11 A Up until the time that he changed the will,
12 there really wasn't much discussion about them at all. A
13 couple of times he would go back to talking about when he
14 worked with his father in the sawmill and hauling lumber and
15 stuff, and he would bring up Irma, the youngest -- he called
16 her his baby sister, and that he would -- the way he
17 described it he cared for her like she was his daughter. I
18 don't know wh at the age difference was but...
19 Q Okay. All right. That is fine. Now, you
20 said up until the time he changed his will. Can you tell us
21 what you know about that situation?
22 A About the will?
23 Q About the changing of the will?
24 A Well, during the time of the divorce thing,
25 whatever that is called, the separation or whatever that is
19
1 called, he was looking at the possibility of moving back to
2 Virginia, back to where - - in the community where his family
3 lived and he - - one day I went out and he had this green
4 folder with so me diagrams of some houses, and I asked him
5 what that was about? Was he going to build a new property?
6 Because he had sold a property by the airport here in
7 Carlisle and so I thought maybe he was going to build
8 another house somewhere and just keep doing what he done
9 before, and he said, no, that he had bought a property down
10 in Virginia from one of his relatives that was close -- in
11 close proximity to some of his other relatives, and that
12 there was this little gas station, country store kind of
13 thing on it, and so he was either thinking about fixing that
14 up and maybe doing that -- moving down there, because he
15 said now that he was divorced -- or when the divorce was
16 final there was nothing to keep him in Carlisle.
17 Q Sure.
18 A He just didn't have any other family there,
19 and he kind of disowned Gisela's children because they were
20 kind of the motivation for that split and so he had bought
21 this property and had -- it was my understanding that it was
22 going to be deeded in Danny's name until such time as the
23 divorce settlement came through, and then he was going to go
24 back and have it redeeded to himself so that he could then
25 build a -- I think it was like a Cape Cod on this property.
20
1 THE COURT: When was this conversation?
2 THE WITNESS: Well, whenever the divorce
3 settlement would have been finalized, it would have been the
4 summer of that. So maybe like June or July.
5 THE COURT: Of what year?
6 THE WITNESS: Well, if she left in 2005 -- it
7 would have been 2007, I guess.
8 THE COURT: All right.
9 THE WITNESS: The summer of 2007. I am
10 thinking that is the timeline because the settlement
11 happened, whenever that was, and so then he came over one
12 day and he said, well -- you know, he would ask me to watch
13 the house for him, and if I saw anybody come on the property
14 I was supposed to call the highway patrol and have them come
15 out and arrest these people for trespassing. He didn't want
16 Gisela coming back and getting anything else.
17 BY MR. MATEYA:
18 Q Okay.
19 A And so, you know, my dad was kind of paranoid
20 like that too so I understand what that is like. So anyway
21 he came over one day and he said, watch the house, I'm going
22 down this weekend and try to get the property back from
23 Danny, and I said, well, you know, do you think that is
24 going to be a problem? He said, well, it sure seems like
25 it. And so, okay, well, I mean that is your issue, you
21
1 know, I'm not in that at all.
2 So anyway he went down and whatever had
3 transpired, but when he came back he was really upset
4 because he told me that Danny said, I'm going to inherit
5 this anyway so I am just going to keep it. That is what he
6 told me.
7 Q Okay.
8 A And so I said, well, that is kind of
9 alarming. What are you going to do? And he said, well, I'm
10 going to write him out of my will. And so I said, okay,
11 fine. Well, the very next week -- it was really kind of
12 interesting. You asked if I ever saw Danny. The very next
13 week I was out -- now, this was in the spring, sometime in
14 the spring because I was out working in the yard.
15 THE COURT: The spring of what year?
16 THE WITNESS: 2008, I guess it would be.
17 That was the year --
18 BY MR. MATEYA:
19 Q You can't look to me for answers.
20 A I don't know. It was whenever the divorce
21 settlement was, then the following year when -- I would say
22 it was 2008. You know, he said I am going to write him out
23 of the will, and so I said, well, you know, that is your
24 choice. And I asked him -- I said, well, who are you going
25 to give it to? I said don't include me, I don't want any
22
1 part of it. You know, I just want to be a tenant. I don't
2 want any part of that, and he said, well, I am going to give
3 it to my baby sister, and I said, well, what is her name and
4 where does she live and so he went on to explain that of the
5 -- of all of the brothers and sisters, and no offense, but
6 they were the least prosperous of all of the brothers and
7 sisters, and so I said, well, you know, what about
8 grandchildren and stuff like that? And he said, well, he
9 had given -- I guess Danny has some daughters, a couple of
10 daughters maybe, and he had given each one of them some
11 money to start a house or to build a house or buy a house or
12 something to do along those lines, and he was upset that
13 they never even bothered to thank him for the money. And he
14 went on to say that Danny was upset because Bill didn't give
15 Danny the money to give to the daughter, and he said, I
16 didn't want to give him the money because I didn't know that
17 she would get all of it. Okay.
18 Q Sure.
19 A So I said, well, you know, you do what you
20 have to do, and so then within a week or so I was out
21 working in the yard and Danny approached me from a whole
22 different direction coming up the street. He came up the
23 street because Bill had told me if Danny -- he had a PT
24 Cruiser. I don't know if he still has the PT Cruiser or
25 not, but it was maroon and it had a picture on the back of
23
1 it, some kind of artwork. He said if you ever see that PT
2 Cruiser in the neighborhood you call the police because I
3 don't want him on the property. And I said, okay, well,
4 I'll do that, you know, because -- you know, I'll honor his
5 wishes. That is his -- you know, he is the one involved in
6 all of that.
7 Well, within a week or two -- I want to say
8 it was like Bill came back on Sunday or Monday of that week,
9 and within two or three days Danny was in my yard asking me
10 if Bill had ever done anything strange, and I said what do
11 you mean? What are you talking about? Why are you coming
12 up from this way?
13 Well, I said, no, you know, he hasn't done
14 anything strange, and he said, well, have you ever seen him
15 climb up on the table to change a light bulb, and I said,
16 no, I don't go in his house, you know. I only step in if it
17 is cold or he invites me in. I have no occasion to be in
18 his house on any basis at all.
19 So he departed. Danny departed, and I
20 mentioned to my wife when she came home from work -- I said,
21 you know, he's up here trying to build a case because he
22 knows that he did wrong, and so when Bill -- when I was in
23 contact with Bill then to tell him about that, well, you
24 know, he wasn't surprised to hear that. And so that was
25 kind of sad.
24
1 Q Okay.
2 A So that is what I know about that, and, you
3 know, it was -- you know, he was determined that Danny not
4 get anything. He said that, you know, in resignation while
5 he was down there in this meeting with Danny about the
6 property he said, all right, if you want the property it is
7 yours, just take it, you know, and that was the end of it.
8 Q Well, did Danny ever call you or talk to you
9 before these events that you have just outlined about his
10 father's wellbeing before that?
11 A No.
12 Q How about any of the siblings? Any of Bill's
13 siblings? Did they ever call you and say, hey, you better
14 check on dad or on Bill?
15 A No.
16 MR. MATEYA: Okay. All right. Your Honor,
17 if I could have just one moment.
18 THE COURT: Certainly. Anything further,
19 Mr. Mateya?
20 MR. MATEYA: Thank you, Your Honor. No, I
21 don't have anything further for this witness.
22 THE COURT: Okay. Mr. Frock.
23 MR. FINCK: Thank you, Your Honor.
24 CROSS EXAMINATION
25 BY MR. FINCK:
25
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4 Mr. Casey, you said that you moved into the
property owned by Bill Evans in 1998, correct?
A Yes.
4 And you have rented that property since that
time?
A That's correct, yes, sir.
4 Okay. Have you ever considered purchasing
the property?
A No, sir.
Q Did you ever talk to Mr. Evans about
purchasing the property?
A No.
4 Who are you renting -- are you still in the
property now?
A Yes.
4 Who are you renting the property from?
A From the Estate of Bill Evans.
4 Okay. So who do you make your payments to?
A The Estate of Bill Evans, I guess. My wife
does the --
4
Do you know?
A
4
A
Physically who does your wife send them to?
To Mr. Mateya.
To Mr. Mateya?
Yes.
26
1 Q Have the terms of your rental agreements
2 changed at all since Mr. Evans passed away?
3 A No.
4 Q Okay. So are you still paying the same
5 amount of rent now as you were to Mr. Evans?
6 A Yes.
7 Q How much is that?
8 A $800 a month.
9 Q You indicated that you saw the decedent on a
10 daily basis; is that correct?
11 A Pretty much, yes, sir.
12 Q Pretty much. When you saw him did you always
13 speak with him?
14 A No.
15 Q Okay.
16 A Wave. You know, just whatever. Hi, how are
17 you doing?
18 Q During the period -- well, let' s say 2000 --
19 well, during the time that you lived there, st arting in 1998
20 until he died, did your interaction with Mr. E vans change at
21 all? Did it ever become more frequent or less frequent?
22 A Not particularly.
23 Q Okay. How often would you actu ally speak
24 with Mr. Evans?
25 A Once or twice a week, to hold a conversation.
27
1 Q And what kinds of things would you talk about
2 with Mr. Evan s?
3 A I would just ask how he's doing, how the
4 family is or whatever, and he would usually, you know, go
5 back into his concerns about whatever was troublir_g him,
6 whether it wa s the divorce or the issue with his son.
7 Q Okay. How many times did he speak to you
8 about the iss ue with his son?
9 A Wow, I would say once a week.
10 Q Okay. He was pretty upset about that?
11 A Extremely. Extremely.
12 Q Did you ever take any action to try to find
13 out whether w hat he was telling you was accurate?
14 A I always took Mr. Evans at his word. So I
15 would have no reason to doubt it.
16 Q Did you ever suggest to him that perhaps he
17 should get a lawyer in Virginia to sort this out for him?
18 A No.
19 Q How come?
20 A I am not attuned to giving him that kind of
21 advice.
22 Q Okay. Who were the other -- who were his
23 other friends in Carlisle during that -- during the time
24 period that you lived there?
25 A Friends? He had a young fellow that would
28
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come over on a regular basis, Ronnie Baish (phonetic), I
think his name is, and it was a young fellow that had been
-- he had some brain injury so Bill kind of took him under
his wing. I don't know how they came to have an
acquaintance. I think he knew Ronnie's dad, I think, and
they would do errands together and do whatever. Ronnie
spent the better part of many days helping Bill with chores
and managing his properties and doing that sort of thing.
Q Aside from Mr. Baish, any other friends that
you can recall?
A Early he had a tenant in the -- when he and
Gisela moved to the new house there was a tenant there, and
I don't remember that fellow's name at all.
Q Would you agree with me that Mr. Evans did
not have a lot of friends?
A Not at all, no.
Q No, you would not agree with me?
A No, I agree with you. I'm sorry, yes. He
doesn't have many friends or didn't have many friends. A
lot of acquaintances but...
Q You had indicated he rarely came into your
home?
A That is correct. He would not arbitrarily
come over.
Q And you also indicated you rarely went into
29
1 his home?
A That is correct.
2
Q Okay. So you guys didn't spend, you know,
3
4 evenings together watching TV?
p, No, nothing like that.
5
4 And you didn't have dinners together?
6
~ p, No .
Q You didn't celebrate holidays together?
8
A No, never did. Maybe I should have,
9
You indicated that you were there when his
10
Q
11 ex-wife moved out?
12 A Yes.
And do you recall what year that was?
Okay
13
Q
.
A Not really. Not specifically.
14 If I were to tell you that Ms. Evans, Gisela
15
4
filed for divorce in 2002 would that comport with
16 Evans,
1~ your recollection of when that was?
A Let's see, that could be -- that timeframe
18
19 could be reasonable.
Q Okay. Was Mr. Evans pretty upset when his
20
21 wife left?
p, Extremely. Many men never get the message
2G
that their wives are leaving them. I know you may find that
2i
for me to say, but I have ample experience in
24 strange
how
i that works, and they wake up one day and their
25 ng
know
30
1 wife is gone and they have moved their belongings and family
2 and disappeared and the husband has no idea why that
3 happened. And that is what -- that is the experience that
4 Mr. Evans had. He was not aware that she was going to leave
5 him.
6 Q Okay. And did this continue on until he
7 died? Did he often talk about his wife?
8 A Yes. The issue with Danny replaced his wife.
9 Q Okay. So when did that happen?
10 A When did the --
11 Q When did he stop talking about his wife and
12 start talking about Danny?
13 A When they had the issue over the property.
14 Q Okay. And do you recall what year that was?
15 MR. MATEYA: Your Honor, I am going to object
16 simply because we are trying to nitpick about is it 2005 or
17 2006, and I think the witness has been crystal clear with
18 his recollection of the events, whether or not it was a
19 specific time.
20 THE WITNESS: Yeah, I couldn't --
21 THE COURT: The objection is overruled.
22 MR. FINCK: Thank you.
23 BY MR. FINCK:
24 Q Do you recall when Mr. Evans stopped talking
25 about his wife so much and started talking about Danny?
31
1 A Well, it would have to be after the event of
2 going down to Virginia. So if that was 2006 or 2007,
3 whatever year that was. You know, I don't keep a journal so
4 I apologize that I don't have more specific data.
5 Q How often would he discuss Danny with you
6 during the 2006 time period?
7 A After he was betrayed you mean? After -- or
8 what he told me as his betrayal of going down there?
9 Q Um-hum.
10 A Probably weekly. Once a week.
11 Q Okay. And so all of your knowledge about the
12 transaction in Virginia came from Mr. Evans himself?
13 A From Mr. Evans, that's correct.
14 Q Okay. You never spoke with Danny about it?
15 A I never spoke with Danny about it.
16 Q Okay. Am I correct though that when you
17 claimed Danny came up and spoke with you and asked you about
18 whether you sa w his father getting on a table to change
19 light bulbs --
20 A That's right.
21 Q You knew about the dispute at that point,
22 correct?
23 A I did, that's correct.
24 Q And you didn't ask Danny anything about it at
25 that point?
32
1 A No.
2 Q Okay. But yet you concluded that Danny was
3 up there trying to build a case?
4
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A Yes.
Q Was that your conclusion?
A Yes.
Q Okay. And why do you say that?
A Because I deal with men on a weekly basis in
trying to help them to live lives that are worthy of Godly
behavior, and in contrasting Godly behavior with ungodly
behavior I have come to recognize that and help men deal
with that, and when men come to me for mentoring to help
change their lives and deal with their relationships with
their wives and families, they endeavor to build a case to
prove their point, to make their point, and so when a person
would come up to me out of the blue and ask me those kinds
of questions, having never had a full conversation with
Danny ever, it would lead me to think that he is -- that he
knows that he is going to have to do something to get -- to
be where we are today because I think he knew full well that
Mr. Evans told him that he was going to be disinherited.
That is what I think. Purely my speculation.
Q Thank you. And at that point you had an
opportunity to perhaps discuss that with Danny, did you not?
A I did, but I didn't think it was my
33
1 responsibility.
2 Q You don't like my client Danny, do you?
3 A I am ambivalent. I feel sad for him.
4 Anybody that would betray his father in this way or at least
5 leave his father thinking that is trouble. On a weekly
6 basis I deal with the gravity of men in all spectrums of
7 life as we try to mentor these men to get their lives back
8 together, and, you know -- sadly, you know, this is just
9 about stuff, and Danny never worried about anything, from
10 what I could see, from what Mr. Evans told me, about
11 anything except the stuff, and Mr. Evans only worried about
12 the stuff, and I found that to be very sad.
13 Q What do you mean Mr. Evans only worried about
14 the stuff?
15 A Well, his concern was that everybody was
16 after his money.
l~ Q The decedent, Mr. Evans?
18 A Yes, you know, and I always -- you know, I
19 was always appreciative that he gave us a modest rent
20 because it is all that we could afford, and he was always
21 gracious to say that it would never change because, you
22 know, we took good care of the property and that sort of
23 thing, and, you know, he indicated that, you know, we never
24 tried to take advantage of him and he really appreciated
25 that and --
34
1 Q Okay. Am I correct then that whatever
2 happens with this will contest could have an effect on your
3 rental agreement?
4 A It could. You know, depending on who ends up
5 owning the property it would certainly determine how quickly
6 we leave. Cathy and I are -- you know, her knees aren't
7 well and so we live in a bilevel and it is the time in our
8 lives, it's just the two of us, and so it is very possible
9 that we would leave.
10 Q You don't want to leave though, do you?
11 A Not especially but I -- it's a big house.
12 Q Have you and Irma ever discussed what would
13 happen if Irma wins the will contest?
14 A We have.
15 Q And can you tell me about those discussions?
16 A The discussion that we have had is that we
17 would continue renting until such time as we would determine
18 that we would depart and find a smaller place to live.
19 Q So she told you that she would continue
20 renting it to you until you were ready to leave?
21 A That's correct. That was my understanding.
22 Q Did you and Danny have any discussions as to
23 what would happen if he were to win the will contest?
24 A No. I wouldn't entertain those discussions.
25 Q Why is that?
35
1 A Based on Mr. Evans' testimony to me about how
2 his son treated him.
3 Q You indicated that Irma and her husband
4 Bernard were the least prosperous. Were those his words or
5 your words?
6 A I would say those are probably my words to
7 make it a more gracious statement.
8 Q Do you recall what his words were?
9 A Not specifically. Maybe something to the
10 effect that all the others have made a good life for
11 themselves and Mr. and Mrs. Davenport hadn't done as well as
12 the others or something like that. I don't know. But that
13 was -- to me, that is what he told me his reasoning was for
14 giving it to them as opposed to anybody else.
15 Q Were you aware that he had a will drafted in
16 August of 2005 giving everything to Danny?
l~ A Not really.
18 Q So that is new information for you?
19 A It would be, yes.
20 MR. FINCK: Nothing further, Your Honor.
21 THE COURT: Okay. Mr. Mateya, do you have
22 anything further of this witness?
23 MR. MATEYA: No, I do not, Your Honor. Thank
24 you.
25 THE COURT: Okay. You may step down. Thank
36
1 you very much for taking your time today to be with
us.
2 THE WITNESS: Thank you.
3 THE COURT: And may this witness be excused?
4 MR. MATEYA: Yes.
5 MR. FINCK: Yes, Your Honor.
6 THE COURT: All right. You may stay or leave
7 as you choose.
8 THE WITNESS: Thank you.
9 THE COURT: We will take a short recess and
10 then resume.
11 (A recess was taken at 10:24 a.m.)
12 AFTER RECESS
13 THE COURT: Please be seated. Mr. Mateya.
14 MR. MATEYA: Your Honor, I would like to call
15 the final witness. That would be Irma Davenport.
16 Whereupon,
17 IRMA DAVENPORT
18 having been duly sworn, testified as follows:
19 DIRECT EXAMINATION
20 BY MR. MATEYA:
21 Q Ms. Davenport, just your name for the record,
22 please.
23 A Irma Jean Davenport, maiden name Evans.
24 Q And your address?
25 A 14044 Glebe Road, Dewitt, Virginia, 23840.
37
1 Q And are ou em to ed
y P y presently?
2 A No, retired.
3 Q Okay. Ms. Davenport, I am going to ask you
4 first about the will of 2005 that your brother executed.
5 Did you know anything about that will?
6 A No, I did not.
~ Q Did you assist him in any way with that will?
8 A No.
9 Q Did you advise him in any way?
10 A No.
11 Q Do you recall -- did you talk to his attorney
12 before that?
13 A No.
14 Q I am going to keep talking about the 2005
15 timeframe, and I am going to ask, in 2005 did any of your
16 siblings contact you about Bill?
17 A No, they did not.
18 Q About his health?
19 A No, they did not.
20 Q Okay. You heard your three siblings testify
21 in court earlier that you saw Bill on a frequent basis i
n
22 2005. Can you just tell me, how often did you see him i
n
23 2005?
24 A Probably a couple times.
25 Q A couple times. Two or three?
38
1 A Could be two, three.
2 Q Okay. All right. And how often did you talk
3 to him on the phone?
4 A Usually at least every couple weeks or so.
5 Q Okay. And now I am going to start to move
6 forward from 2 005 to 2006. Did anything substantially
7 change in the times that you visited him?
g A No, they did not.
g Q And how about in the phone calls?
10 A They usually was about the same, um-hum.
11 Q Okay. Moving forward then to 2006. Were
12 there times when you spent a full week up here with Bill in
13 2006?
14 A I don't recall spending a full week with him,
15 no.
16 Q Okay. All right. How much time did he spend
17 with you down there in Virginia in 2006?
lg A Over one night.
19 Q Okay. I want to talk with you about the will
20 that was probated, the will that was written in 2006. Did
21 you assist him in any way in drafting that?
22 A No.
23 Q Can you tell me what you knew about that will
24 before it was drafted?
25 A No. I didn't know about it before it was
39
1 drafted.
2 Q When did you learn about that will?
3 A I believe the date was April the 24th of 2006
4 when he was at my home.
5 Q Okay. Tell me about that. Tell me what
6 transpired then.
~ A It seemed as he had come down for a family
8 reunion, and he come down sometime that Sunday and we had
9 gone to the family reunion, and then the next morning after
10 my grandchildren had got on the bus and gone he and I were
11 sitting in the kitchen talking and he proceeded to tell me
12 that he had changed his will, and that is the first I knew
13 of it .
14 Q Okay. So you didn't try to sway him or talk
15 with him about what should be in that will?
16 A No, I did not.
17 Q Okay. And again, did you talk to his
18 attorney before that will was drafted?
19 A No, I did not.
20 Q All right. Now, in 2006 -- I am going to ask
21 one or two similar questions that I had asked about 2005.
22 You heard your brothers and sisters talk about having great
23 concern for Bill's mental health in 2006. Did anyone call
24 you in 2006?
25 A I do not recall no phone calls, no.
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4 Okay. And that $2,000, was that repaid?
A Yes, it was.
4 Do you remember when that was?
A Directly after that when my son got his tax
return.
4 Okay.
A He gave it to me and I repaid it.
4 Okay. Tell me, were you ever appointed the
attorney-in-fact through a Power of Attorney document for
your brother?
A Yes, I was.
4 Could you tell me about that?
A That was also done on April 24th when he came
to my house.
THE COURT: April 24th of what year?
THE WITNESS: 2006.
THE COURT: All right.
BY MR. MATEYA:
4 And he had a Power of Attorney document
already prepared; is that right?
A Yes, he did.
4 Okay. So did you have to go and have that
notarized?
A Yes, it was notarized.
4 Okay. Tell me, what actions did you ever
42
1 take as his attorney-in-fact?
2 A None.
3 Q Okay. I want to shift gears a little bit.
4 I want you to -- I want to talk to you about your brother
5 and a pacemaker. Were you aware before he died that he had
6 a pacemaker?
~ A No, I was not.
8 Q Okay. You heard Danny say that you knew she
9 had a -- or that he had a pacemaker. Is that true?
10 A Yes, I did hear Danny say that. No, it is
11 not true.
12 Q Okay. Tell me when you learned about the
13 pacemaker. Tell me what you know.
14 A The day that Danny went to Carlisle Hospital
15 to identify the body they had told him there that he had a
16 pacemaker, and when he returned home he was quite upset and
17 I said, well, Danny, you didn't know your dad had a
18 pacemaker? He said no, no, no, no.
19 Q Okay. Did you tell him that you knew?
20 A I did not comment. Danny said that he did
21 not know.
22 Q Okay. Okay. You have also heard it said
23 here that you stayed with your brother during the time he
24 had his pacemaker put in. Is that true?
25 A No.
43
1 Q Do you know when he had it put in?
2 A No.
3 Q Do you know anything about the circumstances
4 about the pacemaker?
5 A No.
6 Q Okay. I want to talk to you about the
7 autopsy that we have heard about in this case. were you
8 ever contacted by anyone concerning an autopsy on your
9 brother?
10 A No.
11 Q So were any questions said to you about his
12 medical history by anyone?
13 A No.
14 Q All right. Your brother -- did you ever
15 advise him concerning finances?
16 A No.
17 Q Did he ever advise you?
lg A No.
19 Q All right. Did you ever lend him money?
20 A No, I didn't.
21 Q Okay. And while you were the
22 attorney-in-fact, you know, under the Power of Attorney
23 document, did you ever put your own name or Bernard's name
24 on any of your brother's credit cards or bank accounts,
25 anything like that?
44
1 A No.
2 Q Did you ever try to make sure that he did
3 banking a certain way or at a certain place or anything like
4 that?
5 A No, I did not.
6 Q Do you know very much about his finances?
~ A Not until after his death .
8 Q Okay. Did you ever tell him who you thought
9 should benefit from his estate?
10 A No, I did not.
11 Q Can you tell me how much you know about his
12 rental properties?
13 A Not -- no.
14 Q Were you aware that he owned some houses that
15 he rented out?
16 A I was aware of it, but I do not know anything
17 about it.
18 Q Okay. Do you know Jon Casey?
19 A Yes, I do.
20 Q Okay. And did Bill ever ask you to help him
21 with Mr. Casey's house, the lease or the rent or the
22 property, anything like that?
23 A No, he did not ask for any assistance.
24 Q Okay. I am going to shift gears again a
25 little bit and I am going to talk to you about -- oh
45
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pardon. I want to talk to you about the Whitney family
reunion. Is that something that happened every year?
A I don't think that one was really every year.
Q Okay.
A And I did not attend every one of them, no.
Q Okay. I want to talk to you about the one in
2006. Do you recall -- pardon me. Do you recall if you
attended that one in 2006?
A Yes, I did.
Q Okay. Can you tell me about your experience
at that 2006 family reunion?
A I had prepared food, and myself and my
daughter and my two granddaughters left to go to the family
reunion. I left my brother and my husband Bernard at home,
and they came later in another vehicle.
Q Okay. Now you said you left your husband and
your brother at home?
A Yes.
Q Was your brother already there at your house?
A Yes, he was.
Q How did he get to your house?
A He drove there.
Q Okay.
A He came alone.
Q Okay. So he drove there. He came alone.
46
1 Okay.
2 A Um-hum.
3 Q And he -- you said he and Bernard came later
4 to the reunion?
5 A Yes, they did.
6 Q Okay. Why didn't you all go in one car?
7 A Well, my vehicle will only seat five people.
8 Q Okay. And that would have been more than
9 five?
10 A Yes.
11 Q Okay. And do you recall -- you said your
12 brother arrived there at your house and he drove by himself.
13 A With his dog.
14 Q With his dog. Okay.
15 A The dog went everywhere he went.
16 Q Don't forget the dog. Okay. Did he have any
17 trouble getting to your house?
18 MR. FINCK: Objection, calls for speculation.
19 THE COURT: Do you want to ask the question
20 in a different way?
21 MR. MATEYA: Sure.
22 BY MR. MATEYA:
23 Q Did you -- was it your impression that --
24 THE COURT: That is going to be the same
25 question. You can ask perhaps whether -- what she knows as
47
1 to why -- if he, in fact, had any trouble getting there, but
2 I don't think you could ask her impression.
3 MR. MATEYA: Thank you. I appreciate the
4 instruction, Your Honor.
5 BY MR. MATEYA:
6 Q And, Ms. Davenport, do ou
y personally know of
7 him having had any difficulty getting to the house?
8 A No, I do not.
9 Q Did you talk to him about his drive down at
10 all?
11 A I don't recall a conversation about it, no.
12 Q Okay.
13 A We were pretty busy.
14 Q Okay. Now, you live in Dewitt; is that
15 right?
16 A Yes.
17 Q Okay. And how far away was the family
18 reunion from where you live?
19 A Approximately 45 miles.
20 Q Okay. And when the evening was over for you
21 who did you leave with?
22 A My husband, myself, my daughter, and my two
23 granddaughters in my vehicle.
24 Q Okay. And so you did not leave with your
25 brother?
48
1 A No, I did not.
2 Q Okay. Do you recall if Danny and his family
3 left before you?
4 A Yes, they had.
5 Q Okay. So Bill did not leave with you?
6 A No, he did not.
~ Q Okay. To the best of your recollection, did
8 Bill follow you in the car?
g A No, he did not.
10 Q Did he leave -- do you remember if he left
11 before you or after you?
12 A He must have left after me.
13 Q Okay.
14 A Or us.
15 Q To the best of your recollection he was still
16 there when you left?
1~ A Yes, he was.
lg Q Did Bill show up at your house later that
19 night?
20 A Yes, he did.
21 Q Do you remember roughly what time it was?
22 A No. We had came back from the nursing home
23 from visiting with my mother. I don't recall the time. It
24 was later.
25 Q So do I understand then that you left the
49
1 Whitney family reunion, and then went to the nursing home to
2 visit your mom --
3 A Yes, we did because the grandchildren --
4 THE COURT: Wait. There are two people
5 talking at once. Start the question again, Mr. Mateya.
6 MR. MATEYA: Sure.
~ BY MR. MATEYA:
8 Q Do I understand then that you left your house
9 -- I'm sorry, you left the reunion, you went to the nursing
10 home, and then returned to your house?
11 A Yes.
12 Q Okay. All right. And when your brother came
13 home to Dewitt, was he by himself?
14 A Yes, he was.
15 Q Okay.
16 A The dog was left at the house while we were
17 gone.
18 Q Okay. And did he say anythin to
g you about
19 having trouble finding his own way by himself?
20 A No, he did not.
21 Q Okay. How many times had Bill driven to your
22 house before that?
23 A Maybe a half a dozen.
24 Q Okay.
25 A I don't know exactly.
50
1 4 Had he driven down to the family home that
2 was closer to where -- had he driven there many more times
3 than he had driven to your house?
4 A Oh, sure. Yeah.
5 4 Okay. But you don't recall him saying
5 anything about getting lost or having trouble to find your
7 home?
8 MR. FINCK: Objection, leading.
9 THE COURT: Sustained.
10 THE WITNESS: No.
11 THE COURT: No, you have to rephrase the
12 question. The objection was sustained.
13 MR. MATEYA: Thank you, Your Honor. I will
14 withdraw the question, Your Honor. That's fine.
15 THE COURT: All right.
16 BY MR. MATEYA:
17 4 Do you ever recall a time when either you or
18 your husband, to the best of your knowledge, had tc pick up
19 Bill because he was lost?
20 MR. FINCK: Objection, leading.
21 THE COURT: Sustained.
22 BY MR. MATEYA:
23 Q Do you have any knowledge of Bill ever being
24 lost?
25 A No.
51
1 Q How often would you say he drove down to the
2 family reunions?
3 MR. FINCK: Objection, calls for speculation
4 and leading.
5 THE COURT: I don't think it is speculative
6 if she knows how often he came down.
~ THE WITNESS: Well, for years he came down
g several times a year, and he moved to Pennsylvania in '72
g so...
10 BY MR. MATEYA:
11 Q Okay. Did you ever pick up Bill because he
12 was lost?
13 A No.
14 Q To the best of your knowledge did your
15 husband ever pick up Bill because he was lost?
16 A No.
17 Q Okay. Okay. You are the executrix of your
lg brother's estate; is that correct?
19 A Yes.
20
Q Have you -- in handling his estate have you
21 had to see documents or copies of documents that had
22 examples of his handwriting?
23 A Yes, I have.
24.
Q Okay. I am going to show you what has
25 already been marked as Petitioner's -- I believe it is 7,
52
1 and if you go -- in the book in front of you, if you would
2 go to tab number one. Okay. If you would just take a look
3 at that, that is a copy of the original. Can you tell me if
4 it is your opinion that that's Bill's handwriting?
5 MR. FINCK: Objection, leading.
6 BY MR. MATEYA:
7 Q Can you tell me --
8 THE COURT: That's not a leading question.
g It is just a question. You may ask the question.
10 BY MR. MATEYA:
11 Q Can you tell me if in your opinion this is an
12 example of his handwriting?
13 A Yes, it is.
14 Q Okay. I am going to ask you to turn to what
15 is marked -- and, I'm sorry, what has not yet been marked in
16 the booklet on tab number 11.
17 A Is that page 11?
18 Q 11, yes. Thank you. Yeah, number 11. Can
19 you just look through the first few pages of this, and just
20 identify what it is that we are looking at?
21 A It looks like these are some bank statements
22 through the period of 4/27/05.
23 Q Okay. And whose statement --
24 A William I. Evans.
25 Q Okay. How did you come by these records?
53
1 A They were in his chest where he kept these
2 books.
3 Q Okay. If you would turn to what is actually
4 just the third page in.
5 A Okay.
6 Q Okay. And are you looking at a page of
7 checks, the top right-hand check is MCI?
g A Yes.
g Q Just to make sure we are on the same page.
10 Okay. All right. If you would take a look at that, to the
11 best of your knowledge are these checks that your brother
12 wrote?
13 MR. FINCK: Objection, calls for speculation.
14 THE COURT: To the best of your knowledge are
15 these checks your brother wrote?
16 THE WITNESS: Yes, it is.
l~ THE COURT: No wait. I am going to sustain
18 the objection.
19 BY MR. MATEYA:
20 Q Okay. Can you identify what you are looking
21 at?
22 A These are copies of canceled checks that my
23 brother --
24 MR. FINCK: Objection, Your Honor. She lacks
25 foundation.
54
1 MR. MATEYA: Your Honor, what we are -- if I
2 may, what we are looking at -- she is the executrix of her
3 brother's estate, and so taking care of the estate, among
4 other things, she's looking at bank accounts. The bank
5 account that we are discussing is a bank account that her
6 brother used, and so she doesn't work for the bank, but she
7 has, in fact -- she's already stated that she found these
8 records in her brother's house in the cupboard, I think she
9 said, and so these are the records that frankly we are using
10 to, you know, take care of the estate.
11 THE COURT: Well, you can ask her whether
12 this is his checking account, where she found the checks,
13 whether this in her opinion is his signature, but I think
14 you are asking a little more than she can say. That is more
15 for the Court to decide, whether these are his checks.
16 MR. MATEYA: Thank you. That's fine. Okay.
17 Thank you, Your Honor. Again, I appreciate your instruction
18 in that.
19 THE COURT: Certainly.
20 BY MR. MATEYA:
21 Q And I believe I asked you, to the best of
22 your knowledge was this his checking account?
23 A Yes.
24 Q Okay. And you found this again -- could you
25 tell me again where you found this?
55
1 A They were in a chest in his dining room.
2 Q Okay. I am going to ask you to compare what
3 you see on that page -- go to the -- I think it is the very
4 final page. Yeah, the very final page before tab 12 the
5 last page of all of the tab 11?
6 A Page 12?
~ Q No. Go to the last page before page 12.
8 There are multiple pages on number 11. Go to the last page
9 of number 11. Okay. Again, just to be sure we are on the
10 same page, the upper right-hand corner check should say All
11 State Insurance. Is that what you are looking at?
12 A Yes.
13 Q Okay. All right. All right. Is this also
14 part of the checking account which you have already
15 identified?
16 A Yes, it is.
17 Q And it was your brother's checking account;
18 is that correct?
19 A Yes, it is.
2~ Q Okay. And I have asked you about
21 handwriting. Is this -- the printing that you see here, is
22 it the same as the printing that you see on the previous
23 page we looked at?
24 A Yes, it is.
25 Q Okay. I would like you now to go back and
56
1 look at tab 1 again, which has already been marked as
2 Petitioner's 4. Okay. And this is tab number 1. I don't
3 believe you are at the right spot.
4 MR. MATEYA: May I approach, Your Honor?
5 THE COURT: Certainly.
6 MR. MATEYA: Just because looking from a
7 distance it doesn't appear to be the same. That's okay.
8 BY MR. MATEYA:
9 Q Tab number 1, this is the first item that I
10 asked you to look at a moment ago. Do you believe that this
11 is your brother's handwriting as well?
12 A Yes, I do.
13 Q Do you think those handwritings match and the
14 printing matches?
15 A Yes, I do.
16 Q Thank you. Tell me, Ms. Davenport, was Bill
17 your older or younger brother?
18 A He was my older.
19 Q Okay. Tell me about growing up with Bill as
20 your older brother.
21 A Growing up we were always a very close
22 family. I spent a lot of time with him and my brother
23 Thomas as we lived on the farm, and I helped them because I
24 drove the tractor while they did the other things to load
25 the wagons or whatever we were working with.
57
1 Q Okay. All right.
2 A He had taught me to drive the tractor as well
3 as ride a bicycle and different things when I was little.
4 Q You said Bill did that?
5 A Yes, he did.
6 Q Okay. All right. I want to talk to you now
7 about the property in Virginia. You are familiar with the
8 property we are speaking of, correct?
9 A Yes.
10 Q Okay. Tell me about that old building that
11 was on the property. Tell me your impression of it.
12 A I remember going there many times as a
13 youngster because my grandparents and other relatives lived
14 up and down the road, and the children would just walk down
15 to the store and get ice cream or sodas or just generally
16 whatever we wanted, whether it was a piece of candy or
17 whatever.
18 Q Okay. And the building, as it sat before it
19 was burned, do you know if it was able to be renovated?
20 A I do not know, but my brother felt that when
21 he purchased the land it was, and I also lived in that same
22 house part of the store when I was a teenager.
23 Q Okay.
24 A For up to a couple of years, I guess. My
25 family moved around a lot when I was little.
58
1 Q Can you tell me what Bill told you about his
2 plans for that store?
3 A That he was looking forward to moving down
4 there and renovating it, restoring it, doing some upgrades,
5 giving him something to do since he was no longer working.
6 Q Okay. And I understand that Bill purchased
7 that property sometime in 2006. Can you tell me what you
8 know about that event, about him buying the property?
9 A I do not know when he bought it. I never saw
10 any paperwork, any dates. That didn't bother me because
11 that was not my transactions. I didn't need to know that.
12 Q Do you know who he bought it from?
13 A He said he brought it from the sister Connie.
14 Q Did you ever tell Connie you wanted to buy
15 that property?
16 A No. In 2001 we were looking for property to
17 relocate from Richmond, because at that point I was retired
18 on disability, but we decided on a midway point for both my
19 family and his family because his parents were getting older
20 and I still had many doctors in Richmond that I had frequent
21 visits to.
22 Q Okay. And how did you find out that Bill
23 bought the property?
24 A He had told me sometime after he had
25 purchased it. I don't recall when.
59
1 Q Okay. Can you tell me, from what you know
2 firsthand, what transpired next after Bill purchased the
3 property?
4 A That he was looking forward to moving down
5 when his divorce was final.
6 Q Okay. How did you find out that there was
some trouble between Dan -- between Bill and his son Danny?
7
8 A I had gone to Danny's house for him to work
on the AC on the Jeep, and he told me his dad had just given
9
10 him the property.
11 Q Okay. So that is how you found out about it?
12 A Yes.
13 Q Can you tell me more about your discussion
14 with him?
15 A He had told me what he had intended to do
16 with it.
17 Q And?
18 A He was going to burn the property down the
19 following Monday, and he had already had it scheduled with
20 the fire department.
21 Q Okay.
A And that he was going to have it subdivided
22
23 and give one daughter half of it and the other daughter the
2~ other half.
Q Okay. At this point had you -- had a new
25
60
1 will been written? Had you been named the Power of Attorney
2 -- the attorney-in-fact for the Power of Attorney document?
3 A No, it had not.
4 Q None of that had happened yet?
5 A No, it had not.
6 Q Okay. So you knew about Danny wanting to
7 burn down th e property?
8 A Yes.
9 Q And you understand here in this matter you
10 are being ac cused of unduly influencing Bill?
11 A Yes.
12 Q So did you call Bill and tell him that the
13 property was going to be burned down?
14 A No, I did not.
15 Q Can you tell us why not?
16 A Because that was between Danny and his father
17 and not me.
18 Q Did Bill ever tell you that that property was
19 too rundown to fix?
20 A No, he did not.
21 Q Did he talk to you in between those times?
22 Did he talk to you after you talked to Danny but before the
23 property was burned down, to the best of your recollection?
24 A I don't recall any conversations during that
25 time.
61
1 MR. MATEYA: If you would just give me one
2 second, Your Honor.
3 THE COURT: Certainly.
4 MR. MATEYA: Your Honor, I have nothing
5 further for this witness.
6 THE COURT: Okay. Mr. Finck.
~ MR. FINCK: Thank you, Your Honor.
g CROSS EXAMINATION
9 BY MR. FINCK:
10 Q Ms. Davenport, you testified in response to
11 one of Mr. Mateya's questions that during the 2006 Whitney
12 family reunion, that is in April 2006, correct?
13 A Yes, I did.
14 Q And Mr. Evans, the decedent, stayed with you
15 while -- during the weekend he attended that?
16 A Yes, one night.
17 Q Okay. And you indicated that you left the
18 reunion and went to visit your mother in the nursing home,
19 correct?
20 A Yes, I did.
21 Q Did Bill Evans, the decedent, go with you?
22 A No, he did not.
23 Q All right. You indicated that he returned to
24 your house later?
25 A Yes.
62
1 Q Okay. Do you recall -- do you know where he
2 was during that time period?
3 A No, I do not.
4 Q Did you ask him?
5 A No, I did not.
6 Q Was anybody with him during that time period?
~ A I do not know.
$ Q Did anyone come back to your house with him?
9 A No, they did not.
10 Q Okay. Do you know why Mr. Evans didn't go
11 visit his mother with you?
12 A I do not know.
13 Q Did you invite him?
14 A No, I did not.
15 Q You indicated that for years Mr. Evans came
16 down to the reunions, the family reunions, several times a
17 year. Do you recall that?
18 A Well, for different occasions.
19 Q Okay. Did that stop after or decrease in the
20 number of times that he would come down?
21 A Yes, it did in later years.
22 Q He stopped coming down as often?
23 A As often, yes.
24 Q Do you know why?
25 A I guess he had different issues and things
63
1 that may have prevented him from coming. I do not know.
2 Q Did he ever talk to you about being concerned
3 that Gisela was going to steal from him while he was gone
4 from his house?
5 MR. MATEYA: Objection, Your Honor. This is
6 beyond the scope of direct.
~ THE COURT: The objection is overruled.
g MR. FINCK: Thank you.
9 BY MR. FINCK:
10 Q Did he ever talk with you about being
11 concerned about Gisela stealing from him while he was -- if
12 he would have come to Virginia?
13 A He didn't talk to me about it, no.
14 Q Did he ever discuss his divorce with you?
15 A Very little. If he talked I listened, but
16 very little.
17 Q Did you ever talk to him about your own
18 financial problems?
lg A There were just a couple occasions there
20 when I had talked to him about it.
21 MR. FINCK: I have nothing further for this
22 witness, Your Honor.
23 THE COURT: Okay. Mr. Mateya?
24 MR. MATEYA: Just one thing, if I may,
25 Ms. Davenport.
64
REDIRECT EXAMINATION
1
2 BY MR. MATEYA:
3 Q Ms. Davenport, on average how many times did
Bill come down to Virginia in a year?
4
5 A What timeframe were you talking about?
Q Well, let's say -- let's use the 2006 will as
6
a marker. So before that, from say 2000 to 2006?
7
8 A In 2006 I recall twice. That was the Whitney
g family reunion and my sister's funeral.
10 Q The year before that do you recall how many
11 times in 2005?
12 A I don't recall. Maybe mother's birthday. I
13 don't remember that.
14 Q I mean would it have been -- and if you don't
15 remember at all that is okay, but is it just a few times or
16 was it 30 times?
1~ A No. No, it was usually no more than twice a
lg year.
Q So twice a year was average?
19
20 A Yes.
21 Q For him to come down. So then after 2006,
until his passing in 2008, how often did he come down?
22
A It was just the two times in 2006, to my
23
24 knowledge, that I know about.
25 Q Okay.
65
1 A And then 2007 was when my mother passed.
2 That was January of '07.
3 Q Did he come down for that?
4 A Yes, he did.
5 Q Okay. And to the best of your recollection
6 did he come down anymore in 2007?
7 A If he did I don't know about it.
g Q Okay. In 2008, the same. Are you aware of
9 him coming at all?
10 A I am not aware of him coming in 2008.
11 Q Okay.
12 A And only one time in 2007.
13 MR. MATEYA: Your Honor, I have nothing
14 further.
15 THE COURT: Mr. Frock.
16 MR. FINCK: No recross.
17 THE COURT: Okay. You may step down. Thank
18 you. Anything further, Mr. Mateya?
19 MR. MATEYA: Your Honor, we do have nothing
20 further at this time.
21 THE COURT: Mr. Frock, do you have any
22 rebuttal testimony?
23 MR. FINCK: Very briefly I would like to call
24 Danny Evans to the stand, please.
25 THE COURT: Go ahead.
66
1 Whereupon,
2 DANNY BRUCE EVANS
3 having been duly sworn, testified as follows:
4 DIRECT EXAMINATION
5 BY MR. FINCK:
6 Q Mr. Evans, can you state your full name for
7 the record again?
8 A Danny Bruce Evans.
9 Q And you are the Petitioner in this matter; is
10 that correct?
11 A Yes, sir.
12 Q Mr. Evans, were you in the courtroom when
13 Mr. Jon Casey testified earlier today?
14 A Yes, I was.
15 Q And did you hear him testify about a
16 discussion that you had with him prior to your father's
17 death?
18 A Yes, sir.
19 Q Okay. Can you tell the Court what you recall
20 about that disc ussion?
21 A I came up for a visit a couple days -- I came
22 up for a visit, and my dad was not acting well mentally.
23 Q Do you recall what year this was?
24 A I can't really -- no, I don't, and I remember
25 going out -- go ing across the street to the neighbor that we
67
1 knew -- I knew when we -- when I lived up in the
2 neighborhood, Ms. Herr (phonetic), and I discussed with her
3 my feelings of my dad's mental state, and I told her that if
4 she saw him outside or doing anything strange that wasn't
5 normal to give me a call.
6 Q Why did you ask her to that?
7 A Because my dad was not -- he was not mentally
8 right. He was talking all kinds of crazy stuff. I mean he
9 was -- I feared for his health, is what it was.
10 Q Were you worried about his safety?
11 A Yes.
12 Q Now --
13 A And other people's safety.
14 Q You indicated that you talked to Ms. Herr, a
15 neighbor across the street?
16 A Yes.
17 Q And did you talk to Mr. Casey?
18 A Yes. At the time I left Ms. Herr's house I
19 walked across the street because I saw him. I think he was,
20 you know, in the yard, I believe is what it was, and I
21 walked across the street and talked to him. I told him how
22 I felt about my dad's mental state, and if he saw him doing
23 anything strange, you know, like walking around outside
24 naked or something like that, give me a call.
25 Q Did you give him your number?
68
1 A Yes, I did.
2 Q What was Mr. Casey's response?
3 A He said okay. The conversation was only
4 probably two minutes, you know, at the most, between the two
5 of us.
6 Q Okay.
7 A You know, I was, you know, just mainly
8 wanting him to know that if he saw my dad doing something
9 that he thought wasn't normal, to give me a call.
10 Q Okay. Did your father ever tell you that he
11 had written you out of his will?
12 A Yes, he had.
13 Q When was that?
14 A Oh, I can't really recall when it happened.
15 Whenever -- whatever year the will was written, you know, he
16 told me that he was going to write me out of the will.
17 Q Did you think that that was odd?
18 A I personally didn't really give a whole lot
19 of thought to it because the way he was mentally -- you
20 know, the way he was I kind of figured, well, even if he did
21 write the will -- you know, I thought he was going to live
22 to be a hundred years old and whatever he had would be all
23 gone, you know, the home and stuff like -- I personally
24 didn't really give a lot of thought to it, you know. I
25 can't really define the words when he told me. I wasn't
69
1 upset about it because I am thinking, you know, he's going
2 to live to be a hundred years old, and it was not going to
3 be anything left anyway so...
4 Q Did you know why he was mad at you?
5 A Yes. My neighbor -- or my relatives and
6 stuff like that, they were -- you know, they said I talked
7 to your dad and he was upset, you know, saying you took the
8 land from him, but every time I came up to visit him, I
9 talked to him on the phone, I would come up and stay three,
10 four days, a week at a time, and he was perfectly fine. You
11 know, we had a good relationship. You know, to me he acted
12 -- he never brought it up. I mean as far as he never
13 appeared to be hostile or mad about it or anything like
14 that.
15 Q What about when he told you that he had
16 written you out of the will? Did he seem mad at that point?
17 A Well, we had a discussion about the land,
18 and, you know -- well, at the time he didn't tell me that he
19 was -- he had made the will -- he was going to make the
20 will, you know, make a new will, you know, and I kept
21 telling him -- I said, Dad, you gave me the land. And then
22 he would come up with something off the wall, you know, why
23 would I do something like that?
24 Q And how did that discussion end?
25 A It ended where it was kind of like a
70
1 stalemate because I was going, Dad, you gave me the land.
2 Why would I take the -- I have been married for thirty some
3 years. I never took a dime from my dad. I never asked him
4 for a penny. I mean many times he offered, you know, if I
5 ever needed anything, you know, to give him a call, but my
6 dad was one of these people where if you borrowed. a nickel
7 you would hear about it the rest of the your life.
8 In other words, if he was going to buy a
9 hundred acre farm and you needed five cents to finish -- you
10 know, finish the loan, for the rest of your life he would be
11 telling you, you can't get -- you couldn't -- you wouldn't
12 have what you had if it wasn't for him. And I am a very
13 proud person so I never asked my dad for a dollar the whole
14 time since I left home.
15 MR. FINCK: I have no further questions, Your
16 Honor.
17 THE COURT: Mr. Mateya.
18 CROSS EXAMINATION
19 BY MR. MATEYA:
20 Q Mr. Evans, your father gave you $10,000 to
21 open a garage, didn't he?
22 A No.
23 Q That didn't happen? That wasn't your
24 testimony earlier?
25 A What happened was my brother got killed. He
71
1 did not have a beneficiary, and I think the life insurance
2 from the military was $20,000. So what the military did,
3 they gave my dad $10,000 and gave my mother $10,000 and my
4 dad told me because I was working with another guy at a
5 garage and stuff like that, and he said, I'm going to build
6 you a building so you can work out of your own building
7 because he said he didn't want any parts of the money
8 because him and my brother had had a falling out.
9 Q All right. That is fine. Thank you. Did
10 you ever see your dad walk around naked?
11 A No.
12 Q You said here -- and I wrote it down, quote,
13 you said that you were worried. You said, I was worried for
14 his safety. Did you do anything after that to take care of
15 him, to protect him?
16 A In what way?
17 Q Just anything's pretty broad. Did you do
18 anything to take care of him and to protect him after that
19 point?
20 A Well, I asked him about when he went to the
21 doctor last and stuff like that, but with me living in
22 Virginia, and I had a job, I was very, very limited in what
23 I could do. My hands were pretty much tied.
24 Q Thank you. That is fine. Did you speak to
25 your dad the day -- pardon me. Let me back up. The day you
72
1 spoke to Jon Casey did you speak to your dad that day before
2 you spoke to Jon Casey?
3 A About what? I mean I came up to visit my dad
4 so, yes, I talked to him.
5 Q You visited your dad, and then you went to
6 talk to Jon Casey? Is that what you are saying?
7 A yes. I was visiting my dad at the time, you
g know.
9 Q And after that visit did you come up to
10 Carlisle after that -- oh, I'm sorry. Did you come up to
11 Carlisle after that to visit him?
12 A Yes.
13 Q Okay.
14 A Actually I visited him -- I was up for three
15 or four days three weeks before he died.
16 MR. MATEYA: I don't have any further
17 questions, Your Honor.
18 THE COURT: Okay. Mr. Finck.
MR. FINCK: No further questions, Your Honor.
19
20 THE COURT: All right. You may step down.
21 Thank you.
22 THE WITNESS: Thank you.
23 THE COURT: Any further rebuttal testimony,
24 Mr. Finck?
2~ MR. FINCK: No, Your Honor.
73
1 THE COURT: And, Mr. Mateya, do you have any
2 surrebuttal testimony?
3 MR. MATEYA: I do not, Your Honor.
4 THE COURT: Okay. This was very nicely
5 presented by both counsel, and I will take the matter under
6 advisement. We will enter this order:
7 AND NOW, this 29th day of September, 2011,
8 upon consideration of the Petition for Citation Sur Appeal
9 from Decree of Probate, and following a fourth period of
10 hearing, and the evidentiary phase of the case having been
11 concluded, the record is declared closed, and the matter is
12 taken under advisement.
13 (End of order.)
14 MR. MATEYA: Your Honor, if I may, we didn't
15 have a chance -- I didn't want to interrupt you. We didn't
16 have a chance to move for the entry of -- I believe there
17 was only one new exhibit today. It was number -- that would
18 be Exhibit 2, Executrix 2.
lg THE COURT: I thought you were referring to
20 something that had already been admitted. Is that not the
21 case?
22 MR. MATEYA: I referred to two things. The
23 first one that had been admitted was Petitioners, I think 7,
24 am I right?
25 MR. FINCK: Yes.
74
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
MR. MATEYA: And the second one had -- was
our exhibit, Executrix 2, and I have it here. I have a copy
of it here.
THE COURT: Okay. I did not mark that down
as having been referred to. We don't have an identification
in the record. Mr. Mateya, do you want to identify a
certain exhibit and then move its admission?
MR. MATEYA: Yes. While Ms. Davenport was on
the stand -- thank you, Your Honor -- we referred to an
exhibit, which we are asking to have referenced as Executrix
2.
THE COURT: And what was that item?
MR. MATEYA: They were bank statements for
the late William Evans.
(Executrix Exhibit No. 2 was marked for
identification.)
THE COURT: Okay. They have now been marked
by the stenographer. Mr. Finck, do you have any objection
to the admission of those items?
MR. FINCK: I would like to lodge an
objection on the basis of relevance and foundation.
THE COURT: Okay. That exhibit will be
admitted. Executrix's Exhibit 2 is admitted.
(Executrix Exhibit No. 2 was admitted into
evidence.)
75
1 THE COURT: And we will then enter the order
2 previously dictated closing the record. Again, very nicely
3 presented by counsel, and I will try to have an order
4 entered within the next several days.
5 MR. MATEYA: Do you care for post-trial
6 briefs or --
7 THE COURT: I am not requesting them.
8 MR. MATEYA: Okay.
9 (The proceedings concluded at 11:37 a.m.)
10
11
12
13
14
15
16
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76
CERTIFICATION
I hereby certify that the proceedings are
contained fully and accurately in the notes taken by me on
the above cause, and that this is a correct transcript of
same.
~. Michele A. E i e
Official Court Reporter
The foregoing record of the proceedings on
the hearing of the within matter is hereby approved and
directed to be filed.
-~,
Date
,~,.
~ ~. / /
J. Wesley Ol Jr. ,y,J.
Ninth Judicial District
77