Goethe v. Browning

• Decision Date: 09 May 1928
• Docket Number: 12446.
• Citation: 143 S.E. 362,146 S.C. 7
• Parties: GOETHE v. BROWNING et al.
• Court: South Carolina Supreme Court

143 S.E. 362

146 S.C. 7

GOETHE v. BROWNING et al.

No. 12446.

Supreme Court of South Carolina

May 9, 1928

Appeal from Common Pleas Circuit Court of Hampton County; T. J Mauldin, Judge.

Petition by Michel Goethe, as executor of the last will and testament of Belle Browning Goethe, for the probate of the will of Belle Browning Goethe, opposed by F. W. Browning a person non compos mentis, Walker B. Browning, committee and others. The probate court held the will to be valid, and on appeal to the court of common pleas, judgment was rendered for proponent, and contestants appeal. Affirmed.

J. W. Manuel, of Hampton, and Thos. M. Boulware, of Barnwell, for appellants.

Geo. Warren and Randolph Murdaugh, both of Hampton, for respondent.

BLEASE J.

Upon the petition of the respondent, proceedings were had in the probate court of Hampton county to prove in solemn form as the last will and testament of Mrs. Belle Browning Goethe, deceased, a written instrument dated August 16, 1922, which had been formerly admitted to probate in common form. The decision in the probate court was favorable to the validity of the paper as the last will and testament of Mrs. Goethe. The defendants, in that proceeding, who are the appellants here, appealed from the judgment of the probate court to the court of common pleas of Hampton county, and asked for trial by jury as to the issues involved. The respondent made no demand for jury trial, but it appears did not contest the demand of the appellants therefor.

The case came on for trial before his honor T. J. Mauldin, presiding judge. The issue submitted to the jury of will or no will resulted in favor of the establishment of the will.

After the verdict of the jury was announced, the defendants, who contested the validity of the will, moved upon the minutes of the court that the jury's verdict be set aside and a new trial granted; and they also asked the court to determine the issues in the cause without the aid of a jury, and for a decree of the court of no will in their favor. The presiding Judge overruled these motions and made his order approving the findings of the probate court and the verdict of the jury.

The defendants contestants have appealed to this court, and set up by nine exceptions various reasons why the judgment below should be reversed. As far as we deem it necessary, all the exceptions will be passed upon.

The will in question is composed of two sheets. The first sheet contains "clauses" 1, 2, 3, and 4, and is not signed by the testatrix nor by either of the attesting witnesses. The second sheet contains clause 5, which merely appoints the executor, and the signature of the testatrix and the attestation clause. The appellants contend by their first exception that the sheet not signed by testatrix and attested and subscribed by three witnesses, as prescribed by the below quoted section, is not part of the will. This contention is untenable. Section 5336, vol. 3, Code of 1922, is as follows:

"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."

The statute does not require the separate sheets composing a will to be signed by the testator and attested and subscribed by three witnesses. The will itself must be executed in accordance with the formalities prescribed by the statute, but not each separate sheet making up the will. Pearson v. Wightman, 1 Mill, Const. (8 S.C. L.) 336, 12 Am. Dec. 636; Martin v. Hamlin, 4 Strob. (35 S.C. L.) 190, 53 Am. Dec. 673. There can be no doubt but that it is a safe practice for a testator to affix his signature to each sheet composing his will, and it is a further act of precaution to have each separate sheet attested and subscribed by the attesting witnesses, but the statute does not so require, and this court has no power to go beyond the requirement of the statute in the execution and attestation of wills. When a will is composed of more than one sheet, it may become a question of fact for a jury, in a trial of will or no will, to determine whether the unsigned sheet or sheets composing the purported will is or are in fact a part of the will of a testator. The proof of such fact depends upon the rules of evidence, which require that the separate unsigned sheets be identified at the time of the execution of the will, or upon the probate thereof, by all or any one of the attesting witnesses. If the jury is satisfied by intrinsic evidence or otherwise that the purported will composed of one, two, or more sheets is the will of testator, and render their verdict accordingly, it is sufficient.

In the case at bar, the trial judge submitted to the jury the question of fact, "Is the paper dated August 16, 1922, the last will and testament of Belle Browning Goethe?" The "paper" so dated and introduced in evidence is composed of the two sheets as aforesaid. The jury answered this question in the affirmative. To give the construction contended for by appellants, would be to hold, in effect, that each separate sheet making up a will is a will.

The jury, having the paper composed of the two sheets before them, found that the two sheets constituted the will of the testatrix. This being a question of fact for the jury, and the jury having found in favor of the will, this court cannot review their findings. The authorities upon this point are too numerous to require citation.

One of the subscribing witnesses to the will in question, Johnston, testified at the trial that the said purported will, signed by testatrix in his office and attested and subscribed by himself and the two other witnesses, was composed of the two sheets submitted to the jury as the last will and testament of Mrs. Goethe. The second exception contends that it was error to allow the said witness to examine said will for the reason that (1) it permitted said witness to refresh his memory from a typewritten sheet not prepared by him, and which had been out of his possession and in the possession of the proponent of the will, and (2) it permitted said witness to give expert testimony in identifying a written sheet when he had not qualified as such expert. This contention cannot be sustained. The witness was in no sense trying to refresh his memory as to the contents or provisions of the will or to give expert testimony. He was merely identifying the paper as the one which was executed by Mrs. Goethe in his office and attested by himself and the other two subscribing witnesses, and which was left for a time in his possession and read by him while it was in his possession. This was a proper method for such identification. There is no error here.

In their third exception, appellants urge that the trial judge erred in charging the jury that the executor was required to prove his case by the preponderance of the evidence, whereas, under the facts of this case, he should have charged the jury that if there was ground for suspicion, then the executor's proof should be clear to connect the detached papers as a will. Appellants made no request of the presiding judge to charge such a proposition of law, and when the judge asked counsel at the conclusion of his charge if there was anything further, appellants' counsel answered, "Nothing further." If appellants desired this proposition of law to be charged, they should have, under the rules of the court, submitted that request to the presiding judge. It is now too late. But waiving this, we find no error in the judge's charge. It is the general rule that, when a formal execution of a will is admitted or proved, a prima facie case is made out warranting the probate of such will, and the burden of proof is then, as a general rule, on the contestant to prove fraud, undue influence, incapacity, or other objection to the will, and this burden remains on him to the end. Mordecai v. Canty, 86 S.C. 470, 68 S.E. 1049; Anderson v. Wall, 114 S.C. 275, 103 S.E. 562; Thames v. Rouse, 82 S.C. 40, 62 S.

E. 254, Jones on Evidence, 228; 40 Cyc. 1274. The burden was, therefore, upon contestants to prove that the detached sheet complained of was in fact not a part of the will of Mrs. Goethe. In view of the finding of the jury, it is manifest that they failed to produce that proof.

The appellants in their fourth exception complain of error on the part of the Circuit Judge in charging the jury as follows:

"It is a case mostly resting upon evidence

...