Dicks v. Cassels

• Citation: 84 S.E. 878,100 S.C. 341
• Decision Date: 02 April 1915
• Docket Number: 9050.
• Parties: DICKS v. CASSELS ET AL.
• Court: United States State Supreme Court of South Carolina

84 S.E. 878

100 S.C. 341

DICKS v. CASSELS ET AL.

No. 9050.

Supreme Court of South Carolina

April 2, 1915

Appeal from Common Pleas Circuit Court of Aiken County; T. S. Sease Judge.

Action by James J. Dicks against Homer C. Cassels, as executor of L E. Dicks, deceased, and others. From a judgment for plaintiff, defendants appeal. Reversed.

Hendersons of Aiken, for appellants.

Claude E. Sawyer and Gunter & Gyles, all of Aiken, and Bates & Simms, of Barnwell, for respondent.

WATTS J.

This was an action whereby plaintiff asks specific performance of an alleged contract for execution of mutual wills. The evidence shows that two brothers, James J. Dicks and L. F Dicks, on September 11, 1890, executed wills in favor of each other. Before this they planted and rented their lands and also did a mercantile business in Augusta, Ga., that L. F. Dicks had charge of the lands and farming operations, and that James J. Dicks had charge of the mercantile business. In 1905 they failed in their mercantile business, went into bankruptcy, and their mercantile effects were sold. On August 22, 1911, L. F. Dicks executed a later will, giving legacies to two of his servants, Polly Scott and James Larry, and the remainder of his estate to two of his half-sisters, Sarah A. Cassels and Hattie M. Dicks, and naming Homer C. Cassels executor of the will. L. F. Dicks died December 3, 1911, and later this will was admitted to probate in Aiken county in common form; later, upon application made to him, the judge of probate for Aiken county issued notice to the executor of this will to appear and prove the will in due and solemn form. In this proceeding James J. Dicks, the only full brother of the deceased, and the half-brothers and sisters of the deceased and the others concerned in this will were brought in as parties, and this will was proven in due and solemn form and established and admitted to probate in due form of law. Shortly after the filing of the decree of probate court admitting will to probate in due form of law this action was instituted. James J. Dicks is the plaintiff in this action, and under the will of L. F. Dicks made September 11, 1890, he is the sole beneficiary, and he claims that on that date, under an agreement then existing, he and his brother executed mutual, irrevocable wills for survivorship of property. The defendants are the executor and beneficiaries of the will of L. F. Dicks of August 22, 1911, and they (except Hattie M. Dicks, who made default) deny that such agreement for survivorship or for the execution of mutual wills ever existed. Both L. F. Dicks and James J. Dicks were bachelors. The cause was referred to the master for Aiken county to take testimony and report the same, which he did, and upon the testimony so reported the case came on for trial before his honor, Judge Sease, who made a decree sustaining the claim of the plaintiff and directing that after the debts of L. F. Dicks are paid by the executor of his later will, all of the remaining property be delivered over to James J. Dicks as his property. From this decree all of the defendants under the later will of L. F. Dicks who had answered appeal.

Exceptions 1, 2, 3, 9, and 10 raise the question which is the vital and pivotal one in the case, and that is whether or not there was a contract entered into between the dead brother, L. F. Dicks, and the living brother, J. J. Dicks, for the execution of mutual, irrevocable wills. To establish an agreement such as is claimed by the plaintiff here, the proof must be definite, certain, clear, and convincing. A person has a right ordinarily to leave his property to whom he pleases. He has a right any time to make a will disposing of his property, and later on he can revoke this will in toto or change or modify the same by new will or codicil. It is a fixed principle of law that a will is revocable whenever the maker desires to change. A person has the right to dispose of his property as he pleases. He can show gratitude, affection, or charity, or he can be capricious with his own. The law gives to every one the right to enjoy his property while alive, and to make disposition of it after death. The maker of the will is dead, and the degree of proof establishing a contract whereby a will is made that cannot be revoked by the maker ought to be clear and convincing, certain and definite, and scrutinized and received with the greatest of care; for it practically deprives the owner of property of any interest in the property except to enjoy it for life. It is a most serious thing for the court to decide that a person cannot dispose of what is his by deed or devise, and because at one time he intended a certain person to be the beneficiary under his will and after his death to have his property, that later he cannot change his mind and substitute another or others. As persons advance in life they change their views as to a number of things, and it frequently happens that a wealth of affection and favors have been wasted on persons, and the recipient he favors proves weak, unresponsive, unworthy, or ungrateful. A young person it has been said regards every one as his friend, but as he grows older he is wiser, more cynical, and his judgment more clarified, and he frequently finds that his judgment as to men and things has been inaccurate and erroneous. Some he has judged as being worthy he finds unworthy, or unsympathetic, or uncongenial; others that he has judged as unworthy he finds worthy and congenial. There is no doubt that at the time the wills were executed by the brothers in September, 1890, L. F. Dicks intended J. J. Dicks to have his property. But it is a long time between 1890 and 1911, and during that time they had farmed together, merchandised together, and failed in the mercantile together. In McKeegan v. O'Neill, 22 S.C. 468, this court says:

"Such a contract, especially when it is attempted to be established by parol, is regarded with suspicion, and not sustained except upon the strongest evidence that it was founded upon a valuable consideration and deliberately entered into by the decedent."

In Wilson v. Gordan, 73 S.C. 160, 53 S.E. 81, this court says:

"Where a contract to make or not to revoke a will is set up, there are strong reasons for requiring an agreement definite and certain established by evidence clear and convincing. The evidence comes from the living against the dead, who cannot speak in his own behalf in

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