Davis v. Davis

• Decision Date: 18 February 1949
• Docket Number: 16186.
• Citation: 52 S.E.2d 192,214 S.C. 247
• Parties: DAVIS et al. v. DAVIS et al.
• Court: South Carolina Supreme Court

52 S.E.2d 192

214 S.C. 247

DAVIS et al. v. DAVIS et al.

No. 16186.

Supreme Court of South Carolina

February 18, 1949

M. L. Meadors, of Florence, for appellants.

Lee & Shuler and R. E. Harrell, all of Kingstree, and Emerson L. Ard, of Hemingway, for respondents.

BAKER Chief Justice.

James B. Davis, who was a resident of Williamsburg County, South Carolina, for many years, and who lived in the Midway Section of that County in the year 1942, suffered what is termed in the record a stroke during the month of May or June of that year, the exact nature and extent of which is not shown in the record. Although Davis was not confined to bed from the time he suffered this stroke to the time of his death, the evidence shows that he was not fully able to transact his business affairs without considerable help from others. Davis was a farmer and the lower Court found that as a result of the stroke he 'became practically physically incapacitated.' During the same year that Davis suffered the stroke, he went to the office of Mr. J. M. Spivey, a Magistrate in Hemingway, South Carolina, and there executed a last will and testament. The exact dates are difficult to determine from the record, but it appears that he executed the will subsequent to suffering the stroke.

Under the terms of the will executed by Davis in the office of Magistrate Spivey (and so far as the record discloses this was the only will ever made by Davis), he left to his brother, London D. Davis, the sum of $5 of $10, and the entire balance of his Estate to his widow, Catherine Davis for and during her lifetime, with the provision that it should be divided after her death between Lillian Davis described as his adopted daughter, and Roosevelt Burgess, a brother-in-law. William Donnely was named Executor of the will. Davis at the time of his death left an estate which consisted principally of about one hundred fifty acres of farm land in Williamsburg County.

After the will was executed Davis at first kept it in his pocket but about three weeks before his home and its entire contents were completely destroyed by fire, he put the will between the mattress and springs of the bed in which he and his wife slept. The exact date when his home burned is not clear, but the nearest date fixed in the record is the last part of the month of May in the year 1943. The will and other papers of Davis, including deeds to property, were destroyed by the fire, as were all of the other contents of the home, as aforesaid.

On either July 5 or July 6, 1943, Davis in company with his brother, London D. Davis, went to see Emerson L. Ard, Esq., an attorney in Hemingway, South Carolina, for the purpose of purchasing one of Mr. Ard's discarded suits of clothes. While talking to Mr. Ard, Davis told him about his home burning down and about losing everything that he had in the home, and inquired of Mr. Ard how he could get deeds for the ones which were destroyed in the fire. Mr. Ard informed him how to replace the deeds with certified copies from the Clerk of Court. Davis then asked Mr. Ard what would happen if a will were destroyed and we quote from the testimony of Mr. Ard the information he gave to Davis: 'I said if a will is destroyed it is just destroyed.' Davis then asked Mr. Ard what happened to the property of one who does not have a will and we quote further from the testimony of Mr. Ard the information Davis received from him: I said under the statute of distribution the property is divided. He did not tell me that he had a will and I did not know that he had a will. I told him what the statute of distribution was and I think he went on over to Mr. Spivey's office about the same time with London.' On September 9, 1943, James B. Davis died suddenly while sitting in a chair. On October 15, 1943, his widow, Catherine Davis, filed in the Probate Court for Williamsburg County a petition to prove the will executed by Davis in 1942 in common form of law. This petition, which is duly verified, sets forth substantially the facts above outlined with reference to the execution of the will, its contents and its destruction, and is supported by an affidavit of Mr. J. M. Spivey that during the latter part of 1942 he prepared a will for James B. Davis at his instance and request, that the same was duly executed by James B. Davis as his last will and testament as provided by law, and that the contents of the will were as outlined above, except no mention is made of the bequest of $5 or $10 to London D. Davis. There appears to be no formal order of the Probate Court admitting the will to probate in common form or otherwise, but on November 5, 1943, letters testamentary were issued to William Donnely, 'named Executor in the last will and testament of James Davis,' and which letters testamentary further recited 'that on the 5th day of November which was in the year of our Lord one thousand nine hundred forty-three, the last will and testament of James Davis, late of Williamsburg County, in this State, deceased, was proved, approved and allowed of.'

This suit was commenced on November 30, 1944, for the partition of the lands of which James B. Davis died seized and possessed, namely, a tract of one hundred forty-eight acres situate in Williamsburg County. The suit is by London D. Davis, the legatee named in the above will, a brother of the deceased, and Margaret Davis, the widow of another brother, Ben Davis, who survived the deceased but died intestate before suit was brought, against the widow of the deceased, Catherine Davis, and Rosena Davis, James B. Davis, Manda Davis and Violet Davis, children of the deceased brother, Ben Davis. Lillian Davis and Roosevelt Burgess are made parties on the allegation that they claim some interest in the property. The widow, with Lillian Davis and Roosevelt Burgess, answered the complaint and among other defenses set up ownership of the lands in question under the will above referred to. The other defenses set up by these defendants will not be considered because under the view we have taken of the case they would not change the result.

The special referee to whom the cause was referred and before whom the testimony was taken, decided that the will of James B. Davis had been admitted to probate and that the judgment of the Probate Court could not be attacked in this proceeding and therefore recommended that the complaint be dismissed. The Circuit Judge who heard exceptions to the report of the referee decided that the proponents of the will of James B. Davis had failed to meet the requirements for proof of such a will, and that if such a will had been established, then James B. Davis, the testator, clearly adopted the burning or destruction of the will animo revocandi. From this decision the devisees under the will, Catherine Davis, Lillian Davis and Roosevelt Burgess, have appealed to this Court by twenty-eight exceptions. It seems to us that if it is determined that James B. Davis did make a valid will in 1942 and did not prior to his death revoke such will, or that the will was duly admitted to probate by the Probate Court and it was not required to be proved in due form of law, then all other issues in this case become moot questions.

The Court of Probate in South Carolina has only such jurisdiction as is vested in it by the General Assembly, but limited by Section 19 of Article 5 of the State Constitution of 1895. In such matters as the Probate Court may be granted jurisdiction, it is no longer subject to doubt but that the Court of Common Pleas has concurrent jurisdiction on such matters with the Court of Probate. Needless to say that among the several matters to which the Probate Court has been granted jurisdiction are matters testamentary. By Section 8930 of the 1942 Code of Laws of South Carolina it is provided that wills shall be proved before the Probate Judge of the County where the testator resided. By Section 8932 of said Code, the Judge of Probate is authorized to receive proof of wills in common form and 'if such proof shall satisfy the judge of probate that the paper is the last will and testament of the deceased he shall admit it to probate in common form.' In the instant case evidence of the lost will of James B. Davis was presented to the Probate Court for Williamsburg County for probate, and although there is as above stated no separate order admitting such will to probate, the Probate Court in writing did on November 5, 1943, issue letters testamentary under such will to the named executor therein, to wit, William Donnely, and recited in such order of letters testamentary that on the same day the said last will and testament of James Davis, deceased, was proved, approved and allowed. In our opinion this recitation in the order for letters testamentary is sufficient to conclude that on November 5, 1943, the destroyed will of James B. Davis was duly admitted to probate in common form by the Probate Court for Williamsburg County.

In the case of Lowe v. Fickling, 207 S.C. 442, 36 S.E.2d 293, we set forth the presumptions arising when a testator takes possession of his will and the same cannot be found after his death, and we also set forth the burden of proof in connection with the establishment of certain facts with reference thereto. What we said there is applicable to the instant case. Under such circumstances the law presumes that the testator destroyed the will animo revocandi, but this is merely a presumption of fact and may be rebutted by evidence to the contrary.

The burden of proof rests upon the proponents of the will to further establish facts which show that the maker of the will either did not destroy the will for the purpose of revoking the same, or that the will was destroyed by accidental means. When evidence of the...