Brown v. Drake, 21298

• Decision Date: 10 September 1980
• Docket Number: No. 21298,21298
• Citation: 270 S.E.2d 130,275 S.C. 299
• Court: South Carolina Supreme Court
• Parties: Georgia D. BROWN, Shelbra D. Freeman and Ila Drake Vassar, Respondents, v. Harris C. DRAKE, Henry B. Drake, Helen D. Chapman, Louise D. Burgess, Charlotte D. Stone, Guy E. Drake, William Drake and Margaret Davis Drake, Appellants.

Page 130

270 S.E.2d 130

275 S.C. 299

Georgia D. BROWN, Shelbra D. Freeman and Ila Drake Vassar, Respondents, v. Harris C. DRAKE, Henry B. Drake, Helen D. Chapman, Louise D Burgess, Charlotte D. Stone, Guy E. Drake, William Drake and Margaret Davis Drake, Appellants.

No. 21298.

Supreme Court of South Carolina.

Sept. 10, 1980.

William L. Watkins of Watkins, Vandiver, Kirven, Gable & Gray, and F. Smith Pruitt of Allen, Pruitt & Eakes, Anderson, for appellants.

Harold R. Lowery and Associates, Anderson, for respondents.

LITTLEJOHN, Justice:

This action for partition of land brings into issue construction of the will of R. A. Drake, Jr. (testator). The question is whether a provision of his will is against public policy. The trial court held the provision void. We reverse.

The testator was twice married. His first wife was Rosa Campbell Drake and to this marriage, which ended in divorce prior to December 9, 1935, were born eight children.

On December 9, 1935 testator married Ila Mae Loftis Drake. To this second marriage were born two children. These two children and the second wife are the plaintiffs herein. It is now conceded that this wife has no cause of action by reason of her remarriage in 1965. It is apparent that the second marriage was an unhappy one resulting in a divorce in 1939. In 1938, while still married to the second wife, testator executed his will, with a provision as follows:

"2. All of my property real personal or mixed I will devise and bequeath unto my children in equal shares, my executor to have 3 appraisers appointed to appraise my property and make the division as nearly equal as possible. If any of my children should be awarded to my present wife, or raised by her after 1 year of age, I will such child the sum of One Dollar. My wife has forfeited her lawful right to any of my property, and I direct that my executor obtain and prove that she has no right to any of my property."

Testator died in 1967; his estate came to be administered by the Probate Court of Anderson County.

It is the contention of the plaintiffs that this item in the will is void because it is contrary to public policy. The order of the lower court is based on this one issue and that is the only question submitted to this court in this appeal. It has been stipulated that none of the children of the first marriage were "awarded to my present wife or raised by her after 1 year of age." It is also stipulated that the children of the second marriage, who are plaintiffs herein, were ". . . not awarded to anyone in the divorce proceedings, (but) were raised by their mother, Ila Mae Drake 'after 1 year of age'." The ruling of the trial judge was that:

"(T)he provision in the will of R. A. Drake, Jr. which disinherited these two plaintiffs is hereby declared to be null and void and the property of R. A. Drake, Jr. sought to be devised therein is to pass to his heirs at law according to the laws of descent and distribution in effect in the State of South Carolina as of the date of his death."

About 100 years ago this court, speaking through Mr. Justice McGowan, said:

"The law undoubtedly is, that any person of sound mind and of full age may, by his last will and testament, duly executed, disposed of the whole or any part of his estate at his own will and pleasure, except in two or three cases specially mentioned. Our books are full of authority for saying that, for many reasons, it is regarded important to maintain in its full integrity the right which belongs to a testator to dispose of his property as he pleases, provided only his disposition is not in violation of law. . . ." Magee v. O'Neill, 19 S.C. 170 (1883).

The exceptions usually referred to incident to this rule of law are that one may not dispose of his property contrary to constitutional, statutory, or declared case law, and one may not dispose of property contrary to public policy. Examples: One may not dispose of property in violation of the rule against perpetuities, and secondly, one may not require a devisee or legatee, as a condition to inheriting, to divorce a spouse.

The power to dispose of property by will includes the right to attach to testamentary gifts such terms, conditions, or restrictions as the testator pleases, provided they are not contrary to public policy or forbidden by law.

We are not aware of any constitutional, statutory, or case law which the provision under attack violates. We are of the opinion that the same is not violative of the public policy of this state. A will is of no effect until the moment the testator dies. It may be changed from day to day. Normally recipients under a will are completely unaware of the provisions of the will. At the time of the death of the testator involved in this action, the plaintiff-devisees were about 30 years of age, fully emancipated, and could not have been influenced or coerced as a result of the provision of the will. It is obvious that the mother could not have been coerced into giving up her right to rear her own children.

A child has no right to claim an inheritance through a will unless it be established that such was the intent of the testator. If a testator chooses, he may disinherit...