Lowe v. Fickling

• Citation: 36 S.E.2d 293,207 S.C. 442
• Decision Date: 12 December 1945
• Docket Number: 15788.
• Parties: LOWE et al. v. FICKLING et al.
• Court: United States State Supreme Court of South Carolina

36 S.E.2d 293

207 S.C. 442

LOWE et al. v. FICKLING et al.

No. 15788.

Supreme Court of South Carolina

December 12, 1945

Thomas M. Boulware, of Allendale, and Blatt &amp Fales, of Barnwell, for appellants.

Edgar A. Brown and James Julien Bush, both of Barnwell, for respondents.

TAYLOR Justice.

This action was instituted in the Court of Common Pleas for Barnwell County for the purpose of establishing an alleged lost or destroyed will of Mrs. Ida C. Briggs, deceased. The plaintiffs were the executor and a beneficiary under the will, while the defendants were the heirs at law of the deceased.

The complaint alleged the execution of the will in question, its purported provisions, the death of the testatrix, who the heirs at law were, the appointment of an administrator and the inability of the plaintiffs to ascertain the whereabouts of the will. The answer admitted the allegations as to the heirs of Mrs. Briggs, her death and the appointment of an administrator but denied all of the other allegations.

The case was tried at the September, 1944, term of Court by his Honor, Presiding Judge G. Duncan Bellinger, without a jury.

After taking all of the testimony and hearing arguments of counsel the trial Judge found from the law and the evidence that the plaintiffs herein failed in their proof of the following bequests alleged to have been made in the will in question:

(a) To Ida Blanche Walker one diamond ring;

(b) To Anna B. Gregory, the sum of $500 and for her child named for Dr. D. K. Briggs, the sum of $1000;

(c) To the plaintiff, Sarah H. Johnson, all household furniture and furnishings, alleged in the complaint to have been bequeathed to her;

(d) To her sisters, Leila D. Walker and Annie D. Fickling, certain household furniture and furnishings described in the complaint.

He further found:

(e) That the testatrix devised unto Mrs. Sarah H. Johnson the property known as the 'Old Briggs Place,' or 'Old Briggs Home Place.' In this action it is not for the Court to interpret the provisions of the will. The interpretation as to what property this description covers would be determined in a different action brought for the interpretation of the will.

(f) That the testatrix devised unto Mrs. Leila D. Walker, for the term of her natural life, the residence in which testatrix was residing at the time of her death.

(g) As to the alleged devise to the Blackville Presbyterian Church, or to the Presbyterian Synod of South Carolina, the evidence is too indefinite to establish the provisions of the will.

(h) As to the provisions of the will passing the rest and residue of the estate to Thornwell Orphanage and to the Synod of South Carolina of the Presbyterian Church in the United States of America, the evidence shows that this devise had attached thereto conditions which were a component part thereof and therefore inseparable. The evidence fails to show the nature of the conditions. It, therefore, follows that the plaintiffs have failed to establish this bequest as a part of the will.

(i) That the will had been properly executed according to law but that the testator had destroyed it animo revocandi, and therefore he ordered the complaint dismissed.

From these findings the plaintiff now appeals to this Court upon exceptions which raise the following questions:

(1) Did the presumption arise that the testator destroyed the will animo revocandi and if so was such presumption rebutted by the evidence?

(2) Did the Court err in excluding testimony of witnesses, Johnson Todd and Long, of declarations alleged to have been made by the scrivener at the time of the funeral to the effect that the provisions of the will were substantially as alleged in the complaint; the scrivener having testified at the trial that her present recollection as to several of the devises and bequests were indefinite and uncertain?

(3) Did the Court err in holding that plaintiffs failed to establish the devises and bequests to the Blackville Presbyterian Church and to the residuary beneficiaries because the scrivener testified that they contained certain technical provisions or conditions the nature of which she did not remember?

A study of the record shows that there is ample testimony to support the Court of Common Pleas in its finding, that the will was properly executed in September 1941 and from this finding there is no appeal.

It having been established that the will was in existence in 1941 and not having been produced upon the death of the testator, does the presumption arise that the testator destroyed the will animo revocandi?

A will is not a contract but a mere expression of intention to take effect after testator's death and subject in the meantime to revocation or such changes as the maker may deem expedient.

When a testator takes possession of his will and the same cannot be found after his death, the law presumes that the testator destroyed it animo revocandi. This is merely a presumption of fact and may be rebutted by showing by the evidence that the will existed at the time of his death, was lost subsequent thereto, or had been destroyed by another without authority to do so. The same presumption arises where it is shown that the testator, while not having the will in his actual possession, had ready access to it.

The law does not presume that such an instrument had been destroyed by another person without the knowledge or consent of the maker for this would be a crime under our laws and a crime is never presumed, therefore, the burden of proof rests upon the plaintiffs to establish facts that the maker of the will did not destroy it for the purpose of revoking same. Even though one obtained possession of another's will and that person is adversely affected by the contents of the will and has had opportunity to destroy the same, even under such facts when the will cannot be found, the presumption remains that the will was destroyed by the testator for the purpose of revoking same and not destroyed by those who are injuriously affected by the will and would profit by the destruction of the will.

The fact that one who had access to a will may have been disappointed by some of its provisions, and would benefit by the destruction of the will, is not of itself sufficient to rebut the presumption that the testator destroyed or cancelled it. To presume that one in possession of, or has access to, the will of another and to advance his interest has destroyed same would be to presume that one had violated the law by destroying the will. Such presumption is never indulged in. 28 R.C.L., 388; Page on Wills, 2d Ed., Secs. 773, 774, pages 1316-1318; Durant v. Ashmore, 31 S.C.L. 184, 2 Rich. 184; Watkins v. Watkins, 47 S.C.L. 66, 13 Rich. 66; Bauskett v. Keitt, 22 S.C. 187; Scott v. Maddox, 113 Ga. 795, 39 S.E. 500, 84 Am.St.Rep. 263; In re Hedgepeth, 150 N.C. 245, 63 S.E. 1025; Williams v. Miles, 68 Neb. 463, 94 N.W. 705, 62 L.R.A. 383, 110 Am.St.Rep. 431; Tynan v. Paschal, 27 Texas 286, 84 Am.Dec. 619; In re Woods Estate, 247 Pa. 377, 93 A. 483; Hodgson's Estate, 270 Pa. 210, 112 A. 778; Campbell v. Cavanaugh, 96 N.J.Eq. 724, 125 A. 569, 926; Collyer v. Collyer, 110 N.Y. 481, 18 N.E. 110, 6 Am.St.Rep. 405; Holler v. Holler, 298 Ill. 418, 131 N.E. 663; Gavitt v. Morton, 119 Wis. 35, 96 N.W. 395; Wendt v. Ziegenhagen, 148 Wis. 382, 134 N.W. 905; Bradway v. Thompson, 139 Ark. 542, 214 S.W. 27; Estate of Bates, 286 Pa. 583, 134 A. 513, 48 A.L.R. 294, 295; McClellan v. Owens, 335 Mo. 884, 74 S.W.2d 570, 95 A.L.R. 711; Goodale v. Murray, 227 Iowa, 843, 289 N.W. 450, 126 A.L.R. 1121.

While it is not clear what became of the will after its execution it can be...