McCollum v. Banks

• Court: South Carolina Supreme Court
• Writing for the Court: STUKES, Justice.
• Citation: McCollum v. Banks, 213 S.C. 476, 50 S.E.2d 199 (S.C. 1948)
• Decision Date: 03 November 1948
• Docket Number: 16138.
• Parties: McCOLLUM v. BANKS et al.

50 S.E.2d 199

213 S.C. 476

McCOLLUM v. BANKS et al.

No. 16138.

Supreme Court of South Carolina

November 3, 1948

W. E. Findley and W. G. Acker, both of Pickens, for appellant.

Julien D. Wyatt and Felix L. Finley, Jr., both of Pickens, for respondents.

STUKES, Justice.

Melious A. Banks of Pickens County died therein December 1946 at the age of about seventy-seven years. This closest surviving relatives are a brother and sister and their children. One of the latter, who is Virgie McCollum and the niece of the decedent, offered for probate his purported last will which was dated and executed on May 6, 1946, Mrs. McCollum was the sole beneficiary of the estate which is valued at about $2000. and was designated in the will as executrix. The testator lived with and was cared for by her during the last several years of his life. After probate in common form it was attacked by another niece, Mrs. Josie Evans, who was the beneficiary under a former will, the date and content of which are not in the record.

Previously in January 1945, Mrs. McCollum filed a verified petition in the Probate Court in which she alleged that Mr. Banks was of advanced age, extremely deaf, of poor memory, and therefore in need of care with respect to his financial affairs. He had been overreached in several transactions and was recently persuaded to convey his real estate without consideration to a child about one year old. Beside that property he had about $300. in money and received a monthly pension of $75.00 as a Spanish American War veteran. The prayer of the petition was for the appointment of a Committee who should perform the usual duties and also bring action for cancellation of the recited deed.

Upon service of the petition and proper notice, Mr. Banks applied for the appointment of a guardian ad litem, which was done and the latter filed an answer and personally appeared in behalf of Mr. Banks at the hearing. There was testimony by Mrs. McCollum, who is beneficiary and proponent of the subsequent purported will, in substantiation of the allegations of the petition and that Mr. Banks needed a guardian to handle his business affairs because he was almost totally deaf and of poor memory. She had explained the situation to him and he was agreeable to the appointment of a Committee. A nephew of Mr. Banks testified that the latter's health was bad and he was practically deaf. This witness had also consulted Mr. Banks with reference to the appointment of a Committee, to which the latter was agreeable. Finally, Mr. Banks himself testified that he had executed the questioned deed to the infant grantee, but did not exactly understand what he was going; it had been sought before and was 'pulled over' that time. No consideration was paid and the witness was willing that a Committee be appointed to handle his business and seek recovery of the real estate which he had conveyed. There was introduced into the record a sworn certificate of Dr. J. H Cutchin that he had examined Mr. Banks on January 6, 1945 and found him suffering from chronic arteriosclerosis and in the examiner's opinion unable to handle his business transactions because of his physical and mental condition. No other medical evidence was adduced despite the requirement of Sec. 6234 of the Code of 1942 that at least two physicians shall testify in such cases.

Upon the foregoing proceedings the Probate Court found that Mr Banks' extreme deafness and age rendered it difficult for him to handle business matters and that the appointment of a Committee was advisable, particularly in view of his statement that he had been persuaded to convey his real estate without consideration and was agreeable to the appointment of the designated Committee, whereupon appointment was made of a Committee of the person and estate of Mr. Banks as one of unsound mind. Code Sec. 6235. The Committee qualified on Jan. 25, 1945 and continued in the discharge of his duties until Mr. Banks' death. During that time Mrs. McCollum was paid $35.00 per month as board and care for Mr. Banks and his other personal expenses were met by the Committee from the monthly receipt of the pensions checks.

Soon after his appointment the Committee commenced an action in the Court of Common Pleas for the cancellation of the deed of Mr. Banks of December 22, 1944 to the infant grantee, which has been mentioned. It was alleged that the father of the grantee approached Mr. Banks and proposed that he would furnish care and attention in exchange for the deed. Mr Banks was deaf, in poor health and had little capacity for business and did not comprehend the effect of the deed which was procured upon false representation and advantage taken of the weakened physical and mental condition of the grantor. The evidence in this action contained a signed statement by the father of the infant grantee admitting that there was no consideration and consenting to judgment that the deed be cancelled. The Committee testified that it was apparent that Mr. Banks was subject to overreaching and was incompetent to handle business transactions and Mr. Banks had told him that he did not understand the purport of the deed and was drinking at the time of the execution of it. Counsel for the Committee testified to the same effect and as to an interview with the father of the infant grantee which resulted in the written statement of the latter, to which reference has been made. There was testimony to the same effect by the guardian ad litem of the infant defendant. The Referee who took this testimony found the facts to be as represented and that Mr. Banks was deaf to the extent that it was difficult to talk with him and he was subject to lapses of memory, whereby he was overreached in the making of the deed. Decree of the court followed and confirmed the factual findings of the Referee and adopted the recommendation that the deed be cancelled. It was so adjudged and decreed.

Reverting to the proceeding in hand, which originated in the Probate Court: For the proponent there the witnesses to the...