In Re Solomons' Estate. Bostick.

• Decision Date: 14 April 1906
• Citation: 74 S.C. 189,54 S.E. 207
• Parties: In re SOLOMONS' ESTATE. BOSTICK. v. LAWTON et al.
• Court: South Carolina Supreme Court

54 S.E. 207

74 S.C. 189

In re SOLOMONS' ESTATE. BOSTICK.

v.LAWTON et al.

Supreme Court of South Carolina.

April 14, 1906.

Appeal—Findings or Fact—Review.

On appeal from the probate court on probate of a will to the circuit court the cause is to be tried anew, and must be regarded as a law case and the circuit court's findings of fact are conclusive on the Supreme Court.

Appeal from Common Pleas Circuit Court of Hampton County; Purdy, Judge.

In the matter of the estate of H. M. Solomons. From the decree of a circuit court on petition of J. B. Bostick, Daisy McTeer appeals. Affirmed.

W. B. De Loach, for appellant.

A. McIver Bostick, for respondent

WOODS, J. This is a contest over the probate of the will of Miss. H. M. Solomons. It is agreed on all sides that after the execution of her will the testatrix, justbeforeherdeath, undertook to change the sixth clause by adding certain words thereto without observing any of the formalities required to make the change legal. The point at issue is what were the added words, for it is agreed that the will must stand as it was before the attempted change. When presented for probate the sixth clause with the change made read as follows: "All the rest, residue remainder of my estate of every kind whatsoever consisting of South Western Rail Road of Georgia Citizens Bank of Savannah, Silver plate furniture, and bedding to Daisy McTeer if I die at Semole and also for my debts to be at of it." The testatrix who herself wrote the entire will was a woman of intelligence and education, and it is manifest from the expressions used that when the latter part of this clause was written she must have been very feeble. In admitting the will to probate after proof in solemn form the probate judge said in bis decree: It seems to me that the words, 'And also for my debts to be at of it, ' in the last part of the sixth clause of the will, might be the words added, and I gather this from an inspection of the will." On appeal from the probate court his honor, Judge Purdy, held that all of this clause after the word "bedding" was inserted after the execution of the will. Included in the words of the court thus found to be inserted without the proper legal formalities, is the name of Daisy McTeer, the residuary legatee and devisee, and with this change the result of course was that the sixth clause purporting to devise and bequeath the residuary estate failed altogether. This conclusion of fact reached by the circuit court is stated in the decree to be founded on the testimony of Mrs. P. H. Allen, and on inspection of the will and comparison of the writing of the latter part of this clause with the other portions of the same clause and of the entire will.

Mrs. Allen testified: "Miss H. M. Solomons died on the 22d of March, 1905; she kept the will in her possession, and asked for it the night before she died, and added something to It—the latter clause of the sixth paragraph, ending with the word bedding; all after that or that clause was added; my mother and myself, with a little child, was present;" but on cross-examination she said: "I did not read what she wrote, but I knew that the lines that were added to the sixth paragraph was the words that she wrote, and I never read the will until after the death of Miss H. M. Solomons." As the witness says she did not see what words were inserted and does not indicate how she knew, her statement could not fairly be regarded anything more than an opinion. The evidence, however, furnished by the paper itself from inspection and comparison of the writings stands on a different footing. It is true the paper itself is before us, but the circuit court from an inspection and comparison made the finding of fact as to what words were inserted, and the question is whether this court has the power to review the finding. All the cases on the subject from Sullivan v. Thomas, 3 S. C. 531, to Exparte Wallace, 73 S. C. 109, 52 S. E. 873, hold that the circuit court's finding of fact in a law case is final, in the sense...