Mock v. Dowling, 20181

• Decision Date: 03 March 1976
• Docket Number: No. 20181,20181
• Citation: 266 S.C. 274,222 S.E.2d 773
• Court: South Carolina Supreme Court
• Parties: Betty C. MOCK, Appellant, v. G. G. DOWLING and Bankers Trust Company, Executors of the Estate of Lois Carter, Respondents.

Page 773

222 S.E.2d 773

266 S.C. 274

Betty C. MOCK, Appellant, v. G. G. DOWLING and Bankers Trust Company, Executors of the Estate of Lois Carter, Respondents.

No. 20181.

Supreme Court of South Carolina.

March 3, 1976.

Gerald H. Cohen and Thomas R. Taggart, Savannah, Ga., and Ray P. McClain, of Epstein, McClain & Derfner, Charleston, for appellant.

Luke N. Brown, Jr., Ridgeland, and William A. Ruth, of Dowling, Dowling, Sanders & Dukes, Hilton Head, for respondents.

NESS, Justice:

This will contest is limited to the issue of undue influence. The appellant-contestant is Betty C. Mock, one of the two children of the testatrix. The trial court directed a verdict for the respondents, proponents of the will. Appellant argues the proof in its totality establishes a jury question on the issue of undue influence. We disagree.

Lois E. Carter, aged sixty at the time of her death, February, 1973, was survived by two daughters, Patricia Smith and the appellant, Betty C. Mock. By her will dated December 19, 1972, testatrix left one-half of her estate in fee to Patricia Smith and the other half to her executors in trust, income to the appellant, the corpus to be paid to appellant's children at appellant's death, or when the youngest child reached age thirty, whichever occurred later.

The testatrix had been a sole proprietor of a nursery on Hilton Head Island. She had inherited the nursery from her husband and over the years developed it into a valuable enterprise. Both daughters worked at the nursery, however, the appellant had worked there longer and as a salaried employee.

The contestant claims that the testatrix was dominated by her sister Patricia Smith and her husband. Proof of the circumstances that the will was an unnatural one is lacking.

The evidence most favorable to appellant indicated the testatrix had been in poor health for years, but her condition became acute months prior to her death and rapidly declined until her death. The testatrix could not get around easily by herself. She fell asleep at anytime, even at work at the nursery, and her mind wandered in conversations. Also, Patricia Smith spent a great deal of time with her and the husband of Patricia Smith was the financial adviser of the testatrix.

The right to testamentary disposition of one's property is a fundamental one which reaches back to the early common law; the right to dispose of one's property by will is most solemnly assured by law and does not depend upon its judicious use. Smith v. Whetstone, 209 S.C. 78, 39 S.E.2d 127 (1946). Moreover, when the formal execution of a will is admitted or proved, the burden is upon the contestant to prove undue influence. When he relies solely upon circumstantial evidence, the circumstances relied upon 'must be such as, taken together, point unmistakably and convincingly to the fact that the mind of the testator was subjected to that of some other person, so that the will is that of the latter, and not of the former.' Id. page 83, 39 S.E.2d page 129. Havird v. Schissell, 252 S.C. 404, 166 S.E.2d 801 (1969); Farr v. Thompson, Executor, Cheve's Law & Equity Reports 37 (1839) (reciting facts which were insufficient to submit the question of undue influence to the jury).

We are concerned with the testamentary will, intent and purpose of the testatrix on December 19, 1972. When the influence, if any, is ascertained, the issue becomes whether the influence was within legally permissible grounds or exceeded them and, therefore, was undue influence. Here, the record is totally devoid of influence other than the normal relationship of mother and daughter. The most that was shown was the existence of lawful influences arising from the mother-daughter relationship. Those influences are consistent with the assumption that the will expressed the voluntary intention of the testatrix.

It is uncontradicted that the will was prepared by a reputable, competent attorney, who was previously unknown by the testatrix. Moreover, the testimony reveals that, obedient to the wishes of the...