In re Brazman's Will

• Decision Date: 06 March 1934
• Docket Number: 13795.
• Parties: In re BRAZMAN'S WILL. v. STEWART et al. FREDERICK
• Court: South Carolina Supreme Court

173 S.E. 623

172 S.C. 188

In re BRAZMAN'S WILL.

FREDERICK v. STEWART et al.

No. 13795.

Supreme Court of South Carolina

March 6, 1934

Appeal from Common Pleas Circuit Court of Richland County; E. C Dennis, Judge.

Proceeding by N. J. Frederick, executor, for the probate of the will of Anna Brazman, opposed by Ervin Stewart and others. Decree of the probate court was adverse to the validity of the will. From an adverse decree and order of the court of common pleas, N. J. Frederick, executor, appeals.

Judgment in main case affirmed, and order reversed.

N. J Frederick, of Columbia, for appellant.

A. W Holman and T. P. Taylor, both of Columbia, for respondents.

BLEASE Chief Justice.

Anna Brazman, colored, of Richland county, died on March 24, 1930, and a written instrument, bearing the date of July 5, 1929, was probated, in common form, as her last will and testament. Her estate, valued at about $5,000, came to her as the beneficiary of a policy of life insurance, under the World War Veterans' Benefit Act, on the life of her son, who predeceased her. Her only heirs at law, it seems, were certain nephews and nieces. In the alleged testamentary instrument, one-fourth of the estate was bequeathed to Mary Bethel, and three-fourths to N. J. Frederick, and the latter was named as executor. Neither was related to Anna.

On March 22, 1922, Anna Brazman was adjudged, in the probate court of Richland county, to be non compos mentis, and a committee of her person and estate was appointed. Her nephew, John Stewart, who was first named as committee, having died, H. P. Green, Esq., in 1926, was appointed the committee. In October, of 1928, Mr. Green voluntarily relinquished the trust, and N. J. Frederick was thereupon appointed the committee. Frederick arranged for his ward to live, and board, with Mary Bethel. There was at no time any revocation of the order of adjudication of Anna Brazman as a person non compos mentis, and she stood in that relation at the times of the execution of her alleged will and her death.

At the instance of the nephews and nieces of the deceased, there was heard in the probate court a proceeding to prove in solemn form her purported last will and testament. The decree being adverse to the validity of the instrument, Frederick, named as executor therein, appealed to the court of common pleas.

In the trial de novo, before his honor, Circuit Judge Dennis, and a jury, three issues were submitted: (1) As to the mental capacity of the deceased to make a will; (2) as to undue influence; and (3) as to fraud. The motion of Frederick, the proponent, for a directed verdict on the issue of fraud was granted; but his like motions as to the issues of mental capacity and undue influence were refused. In their verdict, the jury said there was no undue influence, but declared that the alleged testatrix did not have sufficient mental capacity to make a will. The result, confirmed by the decree of the presiding judge, who refused a motion for a new trial, was to invalidate, as a testamentary instrument, the purported will. The proponent has appealed to this court.

The second and third questions, raised by the appellant, based on his exceptions numbered 2 and 3, relate: First, to the introduction in evidence of a typewritten copy of the testimony of Dr. J. A. Dillard, taken in the probate court in the non compos mentis proceeding, which appeared in the record in that proceeding, the whole record being admitted in evidence; and, second, to the use by Dr. Dillard of that copy in refreshing his memory as a witness in the trial of this cause. If we should agree with the appellant in his position that the testimony of the witness, taken in the probate court, should not have been introduced, or in his position that the witness should not have been permitted to use his former testimony for the purpose of refreshing his memory, which positions we are not prepared at this time to concede are correct, still we are unable to find reversible error as now complained of. This for the following reasons: The appellant did not object at any time to the use of the copy of his former testimony by Dr. Dillard in refreshing the memory of the witness. While the appellant did state that he objected to the introduction of that testimony in evidence, he gave no ground whatever for his objection. The record does not disclose that the trial judge made a ruling on the matters now questioned by the appellant. It has been repeatedly announced by this court that before we will consider exceptions involving the correctness of the admission of evidence, it must be shown not only that the evidence claimed to have been erroneously admitted was objected to, but that the grounds of the objection were stated. See Allen v. Cooley, 53 S.C. 77, 30 S.E. 721; Holden v. Cantrell, 88 S.C. 281, 70 S.E. 815; Atlanta, etc., v. Victor Mfg. Co., 93 S.C. 397, 76 S.E. 1091; Thornhill v. Davis, 121 S.C. 49, 113 S.E. 370, 24 A. L. R. 617; and Ex parte McLeod, 140 S.C. 1, 138 S.E. 355, 356.

The appellant's fourth question relates to the charge of the trial judge to the jury, and refers to his exceptions 4, 5, 6, and 7. The second request to charge, on the part of the appellant, was as follows: "I charge you that one who relies on insanity, proven at another time, to invalidate a will, has the burden of proving by the preponderance of the evidence that at the moment of executing the will the testator did not have the mental capacity to do so."

After reading it to the jury, the judge made this additional statement: "Well, that is the correct proposition, except that the time when it is proven--when a person is proven insane, that is when the insanity is proven, it relates to the time of the execution of the will and it may be taken into consideration, and where the insanity is chronic, it is presumed to continue."

The appellant now contends the "modification," given by the court, was contradictory and vague; but we cannot agree with that view. We find, too, that it was in harmony with certain language in the eighth request to charge of the appellant, which was granted by the court. That request was as follows: "I charge you that although a testator might have been previously adjudged non compos mentis, yet that would not be conclusive that he was insane at the particular time of the execution of his will, unless the character of his insanity was of a permanet or chronic nature which fact must be proven by the contestants by the preponderance of the evidence. I charge you further that the term non compos mentis is a generic term and under it is included every form of mental disease or weakness--from the slightest to the most serious--and because it is determined that one is ' non compos mentis' raises no conclusive presumption that such a person is lacking in testamentary capacity."

We have italicized the particular language of appellant's eighth request which appears to us to correspond with the modification the judge gave in charging the second request.

If by any chance there was any error in the modifying language of the court, we are unable to see how the appellant may properly complain thereat, when what the judge stated was in line with what the appellant later had him to say. In addition, the modifying instructions were proper declarations under the case of Morris Fertilizer Co. v. Bonner, 126 S.C. 284, 119 S.E. 826, where it was clearly indicated that insanity of a chronic or permanent nature, once proved, is presumed to continue.

The appellant requested the following instructions:

" You are instructed that a moron as such is not an insane person. A moron is defined as 'one whose intellectual development proceeds normally up to about the eighth year of age, and then arrested, never exceeds that of a normal child of about twelve years."'

"I charge you further that before a person can be classified as a moron, it is absolutely necessary for such an individual to be subjected to certain psychological tests by well trained experts in mental diseases, such as psychiatrists or alienists, or able psychologists, and without such tests the mental age of no person can be determined, and that is what is meant when it is said that a person has the mind of a child five or six years or any other number of years."

The part of the request which we have italicized was charged, but there was a declination to charge the remainder, and error is set up on that account. The argument, in favor of the correctness of the rejected instructions, is founded upon the facts, as stated by the appellant in his brief, that "the American Psychological Association, in 1915, adopted a resolution to discourage the use of mental tests for practical psychological diagnosis by individuals psychologically unqualified for the work; that, in 1919, the National Education Association adopted a resolution that the diagnosis of the degree of mental deficiency in the classification of children upon such diagnosis should be in the hands of highly qualified psychologists." And the New York Mental Deficiency Law, of 1919, as to qualifications for psychologists, is referred to.

The resolutions...