Bennett v. Mathewes
| Decision Date | 18 February 1875 |
| Citation | 5 S.C. 478 |
| Parties | BENNETT v. MATHEWES. |
| Court | South Carolina Supreme Court |
Where the question is, whether a certain paper was written by B and the direct evidence thereon is conflicting, other papers proved or admitted to have been written by B., and also the opinion of experts, wholly founded upon a comparison of the papers in question with such other papers, are admissible as evidence.
Where the issue is as to the validity of a paper propounded for probate as the last will and testament of a decedent, by one who is named therein as a devisee, and also as the executor thereof, and the Judge instructs the jury that the proponent " takes a considerable interest under the will," it is not error for him to decline to instruct them that the decedent " died intestate, as to any real estate not devised, which would descend to her next of kin."
BEFORE GRAHAM, J., AT CHARLESTON, MARCH TEMM, 1873.
On the 6th day of January, 1872, Samuel L. Bennett proved, in common form, before the Judge of Probate for the County of Charleston, a paper, purporting to be the last will and testament of Hannah Vesey, deceased, bearing date the 17th day of March, 1870, and on the same day qualified as executor thereof.
The paper had three subscribing witnesses, and was signed by the decedent with her mark. It recited that she was a widow, of the city of Charleston, of the age of seventy-five years, and of sound mind and memory, and then, after directing that her just debts and funeral expenses be paid, it purported, by the first ten disposing clauses thereof, to devise and bequeath to Anne Mathewes, Betsy Price, and several other persons, by name, certain interests in two houses and lots on Ashley Street, her household, kitchen and bedroom furniture clothing and wearing apparel, and the sum of twenty dollars. In some of the devises the limitation to the devisee was " during her life, and to the heirs of her body, if any, and should she die leaving no heirs, as aforesaid," then to be rented and the rents divided. The 12th and 13th clauses were as follows:
Anne Mathewes and others, as heirs of the decedent, filed their petition in the Court of Probate, demanding probate of the paper in solemn form, and on the 14th June, 1872, it was decreed, by the Judge of that Court, " to be the true legal last will and testament" of the decedent.
The contestants appealed to the Court of Common Pleas, and, at the hearing, the proponent called, among others, the subscribing witnesses, who testified to the execution of the paper with the formalities required by law. They further testified that the decedent could neither read nor write, and that the will was not read over to her in their presence. To prove that she knew its contents, the proponent was examined. He testified that he did not write the paper, and knew nothing of its contents until after the death of Hannah Vesey. He also testified to certain acts and declarations of hers which tended to show that she knew the paper was her will, and also knew its contents. On his cross examination certain letters of his were produced, which he admitted had been written by him. They were submitted by the contestants, for the purpose, as their counsel said, of comparison with the handwriting of the will. Their introduction for that purpose was objected to, and the objection being overruled, the proponent excepted.
For the contestants Anne Mathewes was first examined as a witness. She testified that she had seen Bennett write-was well acquainted with his handwriting-and that she recognized the handwriting of the paper to be his. E. H. Sparkman, book-keeper of a bank, Wm. B. Heriot, a Notary Public and insurance agent, were then examined for the contestants, as experts. Each testified that he was unacquainted with Bennett's handwriting, but by comparing the handwriting of the letters with that of the paper propounded as a will, his opinion was that the latter was written by the same person who wrote the former.
The testimony of the experts was objected to on behalf of the proponent. The objection was overruled, and the proponent excepted.
His Honor charged the jury, amongst other points, that Bennett took a considerable interest under the will, and, that being the case, if they should find that the decedent could neither read nor write, and that Bennett drew the will, then it was necessary for him to show, besides the act of signing, that she knew the contents of the paper. The proponent's counsel requested him to charge-
That, by the provisions of the will, the devisee takes absolute interests upon the birth of issue, and that Hannah Vesey died intestate, as to any real estate not devised, and which descends to her next of kin.
This request was denied, and the proponent excepted.
The jury found for the contestants, and the proponent appealed, on the grounds:
1. Because His Honor, it is respectfully submitted, erred in permitting Messrs. W. B. Heriot and E. H. Sparkman, who had no previous knowledge of the handwriting of Samuel L. Bennett, to testify merely from a comparison of hands, to which testimony the proponent then and there excepted.
2. Because His Honor, it is respectfully submitted, erred in admitting in evidence the opinions of witnesses as to whether the will was or was not in the handwriting of Samuel L. Bennett, by comparing specimens of handwriting with each other, to which testimony the proponent then and there excepted.
3. Because His Honor, it is respectfully submitted, erred in refusing to instruct the jury as to any realty not specifically devised would revert to the next of kin of Hannah Vesey, to which refusal so to charge the proponent then and there excepted.
Whaley & Mitchell, Simons & Segling , for appellant.
Whaley & Minot , contra.
This was an issue of devisavit vel non. The testatrix, an old and uneducated woman, had affixed her mark, in the presence of three subscribing witnesses, to a paper which was propounded as her last will and testament. Not having been read over in the presence of either of the subscribing witnesses, and neither of them affording any proof of her knowledge of its contents, it became necessary, in view of her doubtful capacity-not being able to read or write- to ascertain whether she had such knowledge through direct proof, or a presumption arising from the circumstances in evidence. Bennett, who took an interest under the will, and was nominated the sole executor, was introduced as a witness on the part of the proponent, and testified to declarations of the decedent,...
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