In re Perry's Will

• Decision Date: 03 October 1916
• Docket Number: 9528.
• Citation: 90 S.E. 401,106 S.C. 80
• Parties: IN RE PERRY'S WILL.
• Court: South Carolina Supreme Court

90 S.E. 401

106 S.C. 80

IN RE PERRY'S WILL.

No. 9528.

Supreme Court of South Carolina

October 3, 1916

Appeal from Common Pleas, Circuit Court of Lexington County; Frank B. Gary, Judge.

Proceeding to prove the will of Mrs. Emma E. Perry. From a decree of the Circuit Court dismissing the appeal from the order of the probate judge refusing probate, proponents appeal. Appeal dismissed.

Judge Gary filed the following decree in the court below:

Upon notice to prove the will of Mrs. Emma E. Perry in solemn form, a paper purporting to be her last will and testament was offered for probate. Considerable evidence was offered by both the proponents of the will and by those who resisted its being admitted to probate. The probate judge decided against the proposed will, holding that undue influence had been exerted in procuring it to be made. The proponents of the will appealed from this judgment, and the matter is now before the circuit court. Ordinarily a trial de novo should be had, but by agreement of counsel the questions are before me for determination upon the evidence offered before the probate court.

Two questions, besides the questions as to the admission of evidence, are now before me: First. Was the proposed will void for incapacity on the part of the testator, Mrs. Emma E Perry? Second. Is the signature to the proposed will the true signature of Mrs. Emma E. Perry, or is it a forgery? I shall consider these questions in the inverse order of their statement.

In reaching a conclusion I have been very much handicapped by reason of the fact that I am called upon to determine grave questions of fact without having before me the witnesses who are called to establish them. I am deprived of the opportunity of seeing and observing the demeanor of the witnesses on the stand--a most important privilege when called upon to determine whether or not witnesses are testifying the truth. There is little, if any, conflict as to the law.

Realizing the full import of my conclusion as to the facts, I am constrained to find that the signature to the proposed will is not the true signature of Mrs. Emma E. Perry. A comparison of this signature with those conceded to be hers will demonstrate it. It would be useless for me to specify the many points of difference, for a comparison and inspection alone will reveal them. Nor will it serve any useful purpose for me to point out the many and various circumstances that impel me to my conclusion. The result is what is desired. I will, however, give a few of the circumstances that have had weight with me:

It is rather remarkable, and a circumstance which I have considered, that in a town full of good people there should have been selected as subscribing witnesses to the will three men whose reputations for truth and veracity are such that the mayor and several other citizens who know them should be willing to swear that they are unworthy of belief. Generally people are loath to testify so harshly as to their fellow citizens, and when there is such unreserved testimony along this line it is significant.

The letters written by Mrs. Perry to her sisters about three months before the proposed will is said to have been dictated by Mrs. Perry show unmistakably that Mrs. Perry had no love for some who are large beneficiaries under the proposed will and that she thought they had no love for her and were trying to get her property at her death. Whether this was true or not makes no difference. In the absence of any evidence tending to show that she had been convinced that she entertained an erroneous view of things, we must conclude that she continued in the same frame of mind. If she did, it was most unnatural for her to prefer those about whom she felt so strongly above her own sisters and brothers, for whom she seemed to have a real affection.

In reaching my conclusion, which was most reluctant, I have attached importance to the testimony of the trained nurse. She is supposed to be disinterested. A few hours before it is claimed the will was signed, she was discharged notwithstanding the fact that the patient was no better and still very ill. She was called again, and remained with Mrs Perry until the latter's death. No reason has been suggested why she would pervert the facts as to Mrs Perry's condition as to mind and body. Her testimony...