84 S.E. 878 (S.C. 1915), 9050, Dicks v. Cassels

Docket Nº:9050.
Citation:84 S.E. 878, 100 S.C. 341
Opinion Judge:WATTS, J. FRASER, J.
Party Name:DICKS v. CASSELS ET AL.
Attorney:Hendersons, of Aiken, for appellants. Claude E. Sawyer and Gunter & Gyles, all of Aiken, and Bates & Simms, of Barnwell, for respondent.
Case Date:April 02, 1915
Court:Supreme Court of South Carolina
 
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Page 878

84 S.E. 878 (S.C. 1915)

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, [100 S.C. 348] 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...

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