In re King's Will

• Decision Date: 31 July 1925
• Docket Number: 11816.
• Citation: 128 S.E. 850,132 S.C. 63
• Parties: IN RE KING'S WILL.
• Court: South Carolina Supreme Court

128 S.E. 850

132 S.C. 63

IN RE KING'S WILL.

No. 11816.

Supreme Court of South Carolina

July 31, 1925

Appeal from Common Pleas Circuit Court of Anderson County; M. L Bonham, Judge.

In the matter of the will of J. H. King, deceased. From a decree of the circuit court, confirming an order of the probate court admitting will to probate, on application of G. E. King executor, J. T. King and others, contestants, appeal. Affirmed.

A. H Dagnall, of Anderson, for appellants.

Leon L Rice, of Anderson, for respondent.

MARION J.

The appeal is from a decree of the circuit court, confirming an order of the probate court, admitting a will to probate in solemn form.

The question, broadly, is whether an admitted mistake of the scrivener in writing "Bessie" for "Lessie" and "Lessie" for "Bessie," in the paper propounded for probate as a will, should be held to furnish a sufficient evidentiary basis for a finding of fact that the testator did not have such knowledge of the contents of the instrument at the time of its execution as is essential to the making of a valid will.

The pertinent facts, undisputed, are as follows: J. H. King, an aged, illiterate, and infirm man, "procured a magistrate to draw his will," and executed the paper thus drawn with all due formality. At the time of the execution of the instrument Mr. King had a wife and "two sets" of children. All of his children were normal, except two, viz. Fannie King, who was weak mentally, and Lessie King, who had been a physical cripple from infancy. His daughter Bessie King was normal. The scrivener testified, without objection, that J. H. King "had intended to especially provide for Lessie King, and that he (the scrivener) * * * had made the mistake of naming Bessie King throughout the will instead of Lessie King, although the will was read over to testator." The decedent left property worth $7,000 or $8,000.

On the trial in the circuit court, in response to questions submitted by the court, the jury found: (1) That J. H. King in the second paragraph of this paper propounded as his will intended "to say 'Lessie King' where 'Bessie King' is mentioned"; (2) that at the time of the signing of the paper J. H. King knew the contents thereof; (3) that at the time of the execution of the paper J. H. King had testamentary capacity; (4) that the paper was executed in the presence of three witnesses; (5) that the paper propounded was the last true will and testament of J. H. King.

The contents of the paper, are in substance, as follows: (1) A provision for the payment of debts by the executor. (2) The following disposition of the decedent's entire estate: "I will to my beloved wife, viz., Margaret Ann King, my entire estate * * * for her to have * * * so long as she lives, provided, that my said wife shall keep, board, and clothe my two afflicted children, viz., Fannie King and Bessie King, so long as she, my said wife, shall live, and at my said wife's death, I will that all my estate shall become the property of my above named afflicted child, viz., Bessie King, for the keeping, boarding and clothing of herself and my other afflicted daughter, so long as they both shall live * * * and after their death * * * to be equally divided among my eleven children, viz., J. T. King, Warley King, Wiliam King, Bee Mitchell, Obed King, Roalle Gossett, Noree King, Calhoun King, G. Evans King and Lessie King, share and share alike," etc. (3) The appointment of G. Evans King as executor, with "full power and authority to execute all papers necessary for the final winding up and distribution of my estate."

The appellants' position is that upon the foregoing facts they were entitled to have the question as to whether J. H. King knew and understood the contents of this paper answered in the negative, and the appeal is predicated upon the view that, in submitting that question to the jury, the trial court incorrectly or inadequately charged the law. But the facts are undisputed, and if under the law applicable thereto the court below would have been warranted in withdrawing that question, or in directing the verdict which was found, the details of the court's charge, which, it is alleged, indirectly contributed to such finding, are immaterial and could in no event furnish ground for reversal. Since we think the verdict could properly have been directed as it was found, it is believed that the appeal can be best disposed of on its merits by a statement of the views which lead to that conclusion, without attempting to consider the exceptions in detail.

Appellants' fundamental proposition, accorded due recognition, as we think, by the learned circuit judge, that it is essential to the validity of a will that the testator know and understand the contents thereof at the time of execution, unquestionably embodies a sound general principle of law. 40 Cyc. 1101; Tomkins v. Tomkins, 1 Bailey, 96, 19 Am. Dec. 656; note to Re Gluckman, L. R. A. 1918D, 747. But it is an equally elementary principle that, in the case of the execution of a will by a testator of sound mind, there is a presumption from the fact of execution in accordance with the legal formalities that the testator knew and understood the contents thereof. Black v. Ellis, 3 Hill, Law, 68. Since it is undisputed in this case that the paper propounded was executed with all due formality by a capable testator, the presumption arose that it was executed with knowledge of its contents. That presumption was reinforced by the further undisputed fact that the paper was read over to the testator before signing. The case for contestants therefore turns upon the validity of their contention that the admitted mistake of the scrivener was a fact of sufficient probative force to rebut that presumption by raising such an inference of fact that the testator did not know and understand the contents as would warrant the conclusion of law that the paper was invalid as a will and not entitled to probate.

That contention may be appraised first from the viewpoint of the law of mistake as applied to wills. It has been said (28 R C. L. 142, § 96) that, "except when modified by statute, the general rule is that the validity of a will is not affected by a mistake of either law or fact." But that statement as a general rule is open to the criticism that it is inapplicable to a mistake which goes to the identity of the instrument, or to what one text-writer (Schouler [2d Ed.] § 215) calls "fundamental error," as where, for example, two wills are drafted for different persons and one party signs that intended for another. In such case it would seem clear that the mistake would invalidate the instrument, since it would not be the paper upon which the mind of the putative testator operated with testamentary purpose. And even where the mistake is partial (that is, where it goes merely to the changing of certain provisions of the will from what the testator is shown to have intended) the question of whether such partial mistake may soundly be held to invalidate a will for purposes of probate is one as to which the authorities seem to be in a state of some confusion. Thus, in our own case of Whitlock v. Wardlaw, 7 Rich. Law,...