Ex parte McKie

• Decision Date: 27 March 1917
• Docket Number: 9657.
• Citation: 91 S.E. 978,107 S.C. 57
• Parties: EX PARTE MCKIE ET AL. IN RE MCKIE'S ESTATE ET AL.
• Court: South Carolina Supreme Court

91 S.E. 978

107 S.C. 57

EX PARTE MCKIE ET AL. IN RE MCKIE'S ESTATE ET AL.

No. 9657.

Supreme Court of South Carolina

March 27, 1917

Appeal from Common Pleas Circuit Court of Edgefield County; Thos. S Sease, Judge.

Proceedings to contest the will of Mrs. Margaret L. McKie, in which Daniel McKie and others were proponents and Josiah McKie contestant. Decree for contestant, and proponents appeal. Affirmed.

The following is the charge of the court and the exceptions of appellant:

Charge.

Mr. Foreman and Gentlemen: To put you at ease along that line, I have already made arrangements for the sheriff to get your supper for you immediately after this charge is made and he will either bring it to you or conduct you to the hotel. You are to try this case, gentlemen, according to the law and evidence; you have taken an oath that you will well and truly try this case according to the law and the evidence; you have no interest in the outcome of the case, except to render a proper verdict. You have no friends that you are to take care of as jurors; neither have you any enemies that you are to punish by your verdict; you and I are totally disinterested parties we are not here to do anything but the right thing according to our best understanding; you will not be influenced by anything that is improper for you to consider. The question that I propose to submit to you reads as follows, and you will have this small piece of paper with you, and also the alleged will, in the jury room, and nothing more: Is the paper presented for probate, and dated 3d day of October 1912, the last will and testament of Margaret L. McKie? And you will answer, "Yes" or No," and write your name, and the word "Foreman" under it. That is the only question that is submitted to you. You will answer that according to the law and evidence; you cannot make any law of your own; you must take the law as given you by the court; and just here there are certain propositions of law that I desire to call to your attention along the lines of the requests to charge on both sides, and the requests to charge. I cannot state all the law in one proposition, because it would take too long a sentence, covering a page or more, and you would not understand it, very likely, as well as if I should instruct you in short propositions of law and the requests that are written out.

Now, before that: We are not here to make the will of Margaret L. McKie; we are not here to say, if you conclude that is the will of Margaret L. McKie, that it is a just will or an unjust will, because the law says, and it is the law, that a person having property has the right and privilege of making any disposition of their property that they please. The only question is: Is the paper that has been introduced in testimony the will of Margaret L. McKie? If it is not her will, then your answer to this question will be, "No;" if it is her will, then the answer to the question will be, "Yes." The law prescribes how a will shall be made. Under section 3564, and I believe the enactment of this law was by the Legislature in 1824, says: All wills and testaments of real and personal property shall be in writing, and signed by the party so devising the same, or by some other person in his presence and by his express directions, and shall be attested and subscribed in the presence of the said devisor, and of each other, by three or more credible witnesses, or else they shall be utterly void and of none effect. That does not mean that a blind person cannot make a will; that does not mean that a person who is totally blind cannot make a will, but the statute, in order for a will to be valid, must be complied with and you must find that it has been complied with from the testimony; it may be inferred from the testimony; all conclusions of juries are inferences from the testimony.

I charge you, gentlemen, that the proponent of a will is called upon to prove that it is the will of the deceased by the preponderance of the evidence. That does not necessarily mean the greater number of witnesses, but it means by the greater weight of the evidence. It does not mean that it must be proven to be the will of the deceased beyond a reasonable doubt; but it simply means that the testimony must preponderate in favor of the validity of the will. For example: If you take all the testimony in favor of the will, and put it in an imaginary scale or balances on the one side thereof, and take all the testimony against the will, or the validity thereof, and place on the other side of the imaginary scales or balances, and if it stands evenly balanced in your mental picture, in your experiment, then the will cannot stand, and your answer to that question will be "No;" but if the side in your mental picture in which you have placed all the testimony in favor of the will preponderates in the slightest degree over the evidence against it, then there lies the preponderance and you would write a verdict in the form of "Yes" to this question. That is what I mean by preponderance of the evidence.

A great deal has been said about presumptions. I charge you as a general principle of law applicable to all presumptions in this case, that all presumptions are rebuttable. There is no conclusive presumption in this case, and when I speak of presumption I mean a presumption that is rebuttable.

Now, taking up the requests of the proponent of the will, I charge you as follows:

"(1) That the law in this state puts no restraint upon the power of a citizen to dispose of his or her property as he sees proper. He may give all of his property to one or more of his children, and exclude the balance of his children from participation in his estate; or he may give his property to a stranger, if he sees proper to do so." I charge you that.

I charge you this as requested:

"(2) When the proponent of a will proves the formal execution of it, including the attestation and subscription, as required by law, a presumption of testamentary capacity arises, since every adult person is presumed to be sane until the contrary appears." I charge you that, and in connection I desire

to read you a further sentence from a case from which that is quoted. Now, that is in addition to the other request. I read from volume 2, Richardson's Reports, page 236: "Where a testator is of sound mind his knowledge of the contents of the will, as of any other instrument, is presumed from the fact of execution. If he be of doubtul capacity, the law requires that the presumption, arising from the fact of execution, should be confirmed by additional and more direct proof of assent. The character of that proof is to be considered." And I add, is to be considered by the jury, or rather, all the testimony is for the jury.

"(3) When the formal execution of a will is proved, a prima facie case is made out, and the burden is then on the contestant to show the invalidity of the will." I charge you that.

"(4) When a testator is of sound and disposing mind and memory at the time of the execution of a will, his knowledge of its contents, as of any other instrument in writing, will be presumed from the fact of execution." I charge you that, and in connection I desire to read from the Enc. of Evidence, page 258: "The general presumption is that a testator, having executed his will, had knowledge of its contents, but this presumption is never conclusive, and the surrounding circumstances may be so suspicious as to require affirmative evidence of this fact." Also on page 259, footnote: "That the testator did know and approve of the contents of the alleged will is therefore part of the burden of proof assumed by every one who propounds it as a will. This burden is satisfied, prima facie, in the case of a competent testator by proving that he executed it. But if those who oppose it succeed by a cross-examination of the witnesses, or otherwise, in meeting this prima facie case, the party propounding must satisfy the tribunal affirmatively that the testator did really know and approve of the contents of the will in question before it can be admitted to probate." I charge you that, and I simply adopt the language as my own charge on that point to that extent.

The respondent, Josiah McKie, has requested me to charge you the following propositions of law. I take it that this first request is a correct analysis of the statute that I read in your hearing, to wit, section 3564. It only elaborates and explains that section that I read to you; that is, section 3564 of the Code of Laws of South Carolina.

"(1) That under section 3564 of the Code of Laws of South Carolina , it is enacted, and it is the law, that all wills shall be in writing, and be signed by the party purporting to enter into the same, or by some other person in his or her presence, and by his or her express direction; and the jury is charged that if the alleged will in this case of Margaret L. McKie was not signed by her, but by her son, Daniel McKie, in her presence, but not by her expressed direction, then they must find that it was not her will, for the statute requires that the will must be either signed by her, or by some other person in her presence, and by her expressed direction, or otherwise it is null and void." I charge you that, gentlemen; and I charge you also that the statute says nothing about where one person assists another in signing a will; and I charge you that if another person assists the maker of a will, the alleged maker of a will, of her own signature, then that would be a sufficient compliance with the law on that point.

"(2) That whilst 'expressed direction' may be inferred from circumstances surrounding the transaction, yet the jury must be satisfied that such expressed directions were given by the testatrix, before they can find in favor of

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