Ex parte McLeod

• Decision Date: 27 May 1927
• Docket Number: 12214.
• Citation: 138 S.E. 355,140 S.C. 1
• Parties: Ex parte McLEOD. In re CORLEY'S ESTATE et al.
• Court: South Carolina Supreme Court

138 S.E. 355

140 S.C. 1

Ex parte McLEOD. In re CORLEY'S ESTATE et al.

No. 12214.

Supreme Court of South Carolina

May 27, 1927

Appeal from Common Pleas Circuit Court of Florence County; T. J Mauldin, Judge.

Application by Dr. F. H. McLeod for the probate of the will of Mrs. Kate A. Corley, deceased. From a judgment in favor of the contestants J. J. Corley and others, proponent appeals. Affirmed.

J. D Gilland, of Florence, and R. B. Scarborough, of Conway, for appellant.

Willcox & Hardee and Sam J. Royall, all of Florence, for respondents.

WATTS C.J.

This case comes to this court upon an appeal by the proponent of a paper as the last will and testament of Kate A. Corley deceased, from an order made by the circuit court certifying the record to the probate court for cancellation of the will, after the jury, to which the issues framed were submitted, had rendered a verdict to the effect that the alleged testatrix was without testamentary capacity.

While there are a number of exceptions, there are really only three substantial issues raised thereby. Appellant charges error in the trial of the case in the circuit court, in the consideration of which it is necessary to answer the following questions:

(1) Was there sufficient evidence of lack of testamentary capacity to warrant the court in submitting that issue to the jury?

(2) Did the court commit error in admitting testimony as to the amount and value of the estate and the source from which the alleged testatrix acquired it?

(3) Did the court commit error in admitting testimony of J. J. Corley to the effect that he turned over his wages to the alleged testatrix and deposited money to her credit in a bank?

We will consider the appeal under these three general heads.

Was there sufficient evidence of lack of testamentary capacity to warrant the court in submitting that issue to the jury?

It is unnecessary to cite authorities to the effect that if there was any testimony upon the trial of this case in the circuit court, tending to show that the alleged testatrix was lacking in testamentary capacity, it was the duty of the trial judge to submit that issue to the jury. As was stated by Mr. Justice Marion in Chisolm v. Railway Co., 121 S.C. 394, 114 S.E. 503:

"The issues were for the jury. If, as is sometimes intimated, unjust or mistaken verdicts are occasionally rendered by juries on questions like this, the remedy does not lie in usurpation by an appellate court of the prerogatives of the jury, to whose unanimous judgment our law rightly commits the ultimate solution of these oftentimes difficult questions of mixed law and fact."

See, also, Willard v. Finch, 125 S.C. 32, 117 S.E. 818.

As is well stated in the case of Sioux City & Pacific Railroad Co. v. Stout, 84 U.S. (17 Wall.) 657, 21 L.Ed. 745, 749:

"Certain facts we may suppose to be clearly established from which one sensible, impartial man would infer that proper care had not been used, and that negligence existed; another man equally sensible and equally impartial would infer that proper care had been used, and that there was no negligence. It is this class of cases and those akin to it that the law commits to the decision of a jury. Twelve men of the average community, comprising men of education and men of little education, men of learning and men whose learning consists only in what they have themselves seen and heard, the merchant, the mechanic, the farmer, the laborer; these sit together, consult, apply their separate experience of the affairs of life to the facts proven, and draw a unanimous conclusion. This average judgment thus given it is the great effort of the law to obtain. It is assumed that twelve men know more of the common affairs of life than does one man; that they can draw wiser and safer conclusions from admitted facts thus occurring, than can a single judge."

"If, upon any construction which the jury was authorized to put upon the evidence, or by any inferences they were authorized to draw from it, the conclusion of negligence can be justified, the defendant was not entitled to this order [directing a verdict] and the judgment cannot be disturbed." Sioux City & Pacific Railroad Co. v. Stout, supra.

The same principles have been applied in South Carolina and in will cases:

"The questions of competency to make a will and of undue influence in procuring the will to be made, where there is no exception to the instructions of the judge, or other legal objection, are questions of fact for the jury, and their verdict will not be disturbed. *** I have to observe, that the presiding judge, on the circuit, was satisfied, by the evidence, of the mental competency of Lucy Hatcher, to make such last will-that her mind was sound, and her will firm, and that it would have taken great address and influence to have deprived her of free agency, or swayed her at all, in a matter of importance, although her perception and memory were much decayed. That with this opinion of Lucy Hatcher's mind and firmness of purpose, he could not perceive in the evidence sufficient proof of such undue and improper influence as to disaffirm the decree of the ordinary, admitting the will to probate. But both of these questions were submitted to the proper tribunal for the decision of facts, with full instructions upon the legal meaning of a sound mind, memory and discretion in testators; and the jury have, by their verdict, annulled the will. It was within their peculiar province and jurisdiction so to do; and this court, under all the circumstances and character of the particular case, does not perceive sufficient reason to interfere with the verdict, by ordering a new trial." Tillman et al. v. Hatcher, Rice, 280.

This case was in many respects similar to the case now under consideration. The three subscribing witnesses gave their opinions that the testator was of sound mind, free to act, etc. Several other witnesses were then examined, many of whom expressed their opinions. Notwithstanding this testimony of the attesting witnesses, the jury found against the will and the Court of Appeals refused to interfere with the verdict.

This court held, in the case of Live Stock Co. v. Bonner, 92 S.C. 122, 75 S.E. 369, that:

"Mere insufficiency of evidence and preponderance of evidence cannot be considered by this court in actions of law."

In the rather recent case of In re Perry's Will, 106 S.C. 80, 90 S.E. 401, this court, in a unanimous opinion, decided that:

" Where in a proceeding to probate a will an inference of testatrix's incapacity could be drawn from testimony describing her condition before and after the moment of signing the will, a decree finding her incapable will not be reviewed."

The same case is authority for the proposition that the probate of a will is a law case, and that the Supreme Court will not, in such case, review findings of fact unless they are entirely unsupported by evidence. Notwithstanding the fact that no witness in that case stated a want of capacity at the moment of signing the will, the verdict of the jury declaring her incompetent was upheld.

In a still more recent case, Anderson v. Wall, 114 S.C. 275, 103 S.E. 562, it is held and decided that, where a motion was made in the circuit court for a new trial on the facts and refused, this court has no jurisdiction in any view of the case.

Applying the same principle, if, upon any construction which the jury was authorized to put upon the evidence, or by any inference they were authorized to draw from it, the conclusion of lack of testamentary capacity can be justified, the defendant was not entitled to a directed verdict. It will probably therefore be conceded that if any relevant testimony was introduced upon the trial of this case, it was the duty of the trial judge to submit the case to the jury.

A careful examination of the record in this case shows there was ample evidence of the lack of testamentary capacity. There was evidence for the jury to consider as to her serious physical condition and mental weakness at the instant of the execution of the paper. There was evidence as to her being peculiar, her lack of appreciation of her husband's ability and character, and as to her suffering from a delusion as to the ability, character, and habits of her husband, which became so intensified as to bias her mind against him and cause her to have no real knowledge of him in a sense that is necessary in making a testamentary disposition of property, in that at the time of the making of the will and previous thereto the testimony is ample to show that there was a complete absence in her mind of any sense of obligation to her husband, either for the kind and constant attention bestowed upon her by him, or for the fact that he had bestowed upon her all of his earnings, and that these earnings constituted practically all of the property which she undertook to dispose of to others, to the entire exclusion of her husband except in case of physical incapacity.

It is unnecessary to quote the evidence in the case; it would serve no useful purpose. There was sufficient evidence, and from all the circumstances in the case the jury had the right to pass on the question of her testamentary capacity. The testimony illustrates her nervousness, her lack of ability to reach a decision, her changeableness under the influence of others, or her own irrational mind.

There is ample evidence that Mr. Corley was devoted and good to his wife, and had an established reputation for sobriety industry, and ability to maintain his position and improve it throughout the period of Mrs. Corley's life. She...