Guerin v. Hunt

• Decision Date: 08 December 1921
• Docket Number: (No. 10763.)
• Citation: 110 S.E. 71
• Parties: GUERIN . v. HUNT et al.
• Court: South Carolina Supreme Court

110 S.E. 71

GUERIN .

v.HUNT et al.

(No. 10763.)

Supreme Court of South Carolina.

Dec. 8, 1921.

Appeal from Common Pleas Circuit Court of Charleston County; W. H. Townsond, Judge.

Proceeding by J. A. Guerin against Reta Baring Hunt and another for probate of a will. From a decree probating the will, including alterations, defendant Florence G. Hunt appeals. Modified.

Paul M. Macmillan, of Charleston, for appellant.

J. Waties Waring, of Charleston, and Francis F. Carroll, of Summerville, for respondent.

RUCKER, A. A. J. A. Morton Hunt died in the city of Charleston on the 1st day of October, 1918, leaving an estate valued at three-quarters of a million dollars, and his will was admitted to probate in common form in Charleston county on the 7th day of August, 1919. Application was made tohave the will proved in solemn form, and on the 15th day of October, 1019, J. A. Guerin, the respondent herein, was ordered to prefer the usual petition, which was done. Air. Hunt left surviving him his widow, Beta Baring Hunt, and his daughter by a former marriage, Florence Goodrich Hunt these being his sole heirs at law. The heirs at law were duly notified, and the daughter, Florence, being a minor, was represented by her guardian ad litem.

At the hearing the plaintiff-respondent produced the subscribing witness to the will, which is as follows:

On the 27th day of February, 1920, the judge of probate rendered his decision, holding that the paper introduced was the last will and testament of A. Morton Hunt, and Included in the will all the interlineations and alterations appearing on the first page of the will. From this decision both Mrs. Reta Baring Hunt and Miss Hunt, by her guardian ad litem, appealed to the circuit court, and on the 31st day of August, 1020, Hon. W. H. Townsend at chambers rendered his decree affirming tlie judgment of the probate court. From this decree the daughter, Florence G. Hunt, alone appealed.

The evidence at the trial showed on the part of the proponent of the will, Dr. J. A. Guerin, that the will was executed at his drug store in the town of Summerville, that the will consisted of two sheets of paper, not fastened; that he and the subscribing witness Herbert F. Dunning never saw the first sheet upon which the alterations appear, but that the other subscribing witness, Mrs. Eloise Guerin, saw the first sheet when Dr. Guerin went forward in the store to get Mr. Dunning to come and attest the execution of the will. She testified:

"I saw the front page, and there was writing on the top, middle, bottom, and both sides, but I did not read what was written."

The body of the will is typewritten, and the interlineations are in the handwriting of the testator.

Upon the part of Mrs. and Miss Hunt the evidence was that the typewritten portion of the will was prepared for Mr. Hunt some time before its execution, and there was some evidence that there were no interlineations on the will prior to its being taken to the drug store for execution, and, admittedly, no interlineations were made there.

After the execution of the will there is a conflict of testimony as to what took place Doctor and Mrs. Guerin stating that they returned with Mr. Hunt to his home, and spent the evening with him and his family; Mrs. Hunt and Miss Hunt testifying that Doctor and Mrs. Guerin accompanied Mr. Hunt to the gate, but did not enter, andthat Mr. Hunt, upon entering the house, secured pen arid ink, and spent some time in writing upon the paper. The paper was turned over to Mrs. Hunt the next morning, when it was in the condition as offered for probate.

In deciding the case as presented, it is deemed proper to consider certain general propositions of law applicable to the alterations of wills.

The alterations of wills differ essentially from the alterations of other papers. In the latter case there is involved the right of alteration, whereas in the case of wills there is no question of the right to alter; a man may change his will as often as he pleases, and in any respect that suits his fancy. The question then to be considered is not that of the right to alter, for that is conceded, but whether such alterations were made in compliance with the requirements of law for the due execution of wiUs.

What effect, then, have interlineations in a will, in the absence of explanations as to when such interlineations were made, where the language of the original will is decipherable? In the case of Pringle v. McPherson, 2 Desaus, 524, it was held that an alteration in a will after its execution will not revoke it, and in Gardiner v. Gardiner, 65 N. H. 230, 19 Atl. 651, 8 L. R. A. 383, the court said that alterations unexplained do not affect the validity of the will as originally executed; and to the same effect is our case of Means v. Moore, Harp. 314.

When it is evident that alterations have been made in a will, the general presumption of law is that the alterations were made subsequently to the execution of the paper, and are therefore void (Toebbe v. Williams, 80 Ky. 561; Van Buren v. Cock-burn, 14 Barb. [N. Y.] 118), and unquestionably the burden of proof rests upon the proponent of the will of showing that such alterations were made prior to execution (Dodge v. Haskell, 69 Me. 429; Ely v. Ely, 6 Gray [Mass.] 439; Priest v. Whitacre, 78 Va. 151).

An exception to the general rule that the law presumes alterations in a will to have been made after execution is that, where blanks are left in wills, the filling of the blanks is presumed to have been prior to execution. In the matter of Voorhees, 6 Dem. Sur. (N. Y.) 162. With these propositions of law before us, we come to an application of them to this case.

There are four evident blanks in the typewritten will. The first is in the third paragraph, where the amount left to his wife, Reta Baring Hunt, is left blank, and is filled In by the sum of.f50, 000. The next one is in the fourth paragraph, where a gift is made to some one for an unknown amount, and is filled by the name of Eloise Guerin, and the amount is fixed at $5,000; and the last blank is in the last paragraph, where the name of the executor is left blank, and is filled by the name of J. A. Guerin.

Under the law as set out, all of these interlineations, or filling of blanks, are presumed to have occurred prior to the execution...