Muldrow v. Jeffords

• Decision Date: 23 March 1928
• Docket Number: 12411.
• Citation: 142 S.E. 602,144 S.C. 509
• Parties: MULDROW v. JEFFORDS et al.
• Court: South Carolina Supreme Court

142 S.E. 602

144 S.C. 509

MULDROW v. JEFFORDS et al.

No. 12411.

Supreme Court of South Carolina

March 23, 1928

Appeal from Common Pleas Circuit Court, Florence County; E. C Dennis, Judge.

Action by Robert J. Muldrow against Marion Lee Jeffords and others. Decree for defendants, and plaintiff appeals. Affirmed.

Blease and Stabler, JJ., dissenting.

D. E Ellerbe and S. M. Wetmore, both of Florence, for appellant.

Willcox & Hardee, of Florence, for respondents.

WATTS C.J.

A reconsideration of this case upon a rehearing has convinced the court that the conclusion reached in the first opinion is erroneous, and that instead of being reversed the decree should be affirmed.

This is an action commenced July 16, 1924, for the purpose of having it adjudicated that a judgment of the court of common pleas for Florence county, entered upon a verdict rendered in May 1914, declaring that the will of Robert J. Muldrow, Sr., which had been proved in common form in the court of probate, was "no will," is null and void, for want of jurisdiction in the court of common pleas to so determine, and for fraud in the proceedings eventuating in said verdict and judgment.

The plaintiff, Robert J. Muldrow, Jr., a grandson of the alleged testator, claims to be a devisee of the land in question, under said will, and prays that the proceeding referred to be set aside as a cloud upon his title.

The defendants are the heirs at law of Mrs. Annie G. Muldrow (the widow of the testator), to whom the property in question was allotted in the division of the property of Robert J. Muldrow, Sr., as an intestate estate, S. T. Burch, the purchaser of the property in question at a sale for partition of the property of Annie G. Muldrow, deceased, and M. M. Brown and L. A. McCall, against whom the defendant Burch makes certain claims.

It thus appears that the regularity of the immediate proceeding under which Burch acquired his title (the partition proceeding, in which the estate of Annie G. Muldrow, deceased, was divided) is not in question; the attack is upon the title of Annie G. Muldrow, from whom Burch claims, by reason of the alleged nullity of the judgment declaring, upon proof in solemn form of the will of Robert J. Muldrow, Sr., that it was "no will."

Robert J. Muldrow, Sr., died on April 2, 1911, leaving a will dated March 30, 1911, in which he devised to his grandson, the plaintiff, the remainder in fee, after a life estate to another, in the real estate described in the complaint. On April 17, 1911, J. A. Muldrow, his son, and Marion Lee Jeffords, his daughter, who were named executor and executrix of the will, presented the will for probate to the judge of probate of Florence county, and it was duly admitted to probate in common form on that day. The personal representatives qualified, and proceeded with the execution of the will and the administration of the estate. On November 29, 1911, certain of the heirs at law of Robert J. Muldrow, Sr., interested in invalidating the will, gave notice to the judge of probate requiring it to be proved in due form of law. Thereupon the judge of probate issued a summons addressed to all of the heirs at law of Robert J. Muldrow, Sr., "such persons as would have been entitled to distribution of the estate if the deceased had died intestate," requiring them to answer the petition. The summons upon this petition did not include the plaintiff, Robert J. Muldrow, Jr., evidently for the reason that he was interested only as a devisee; his father, J. Archie Muldrow, who was a son of the testator, was then alive, and the plaintiff could not have been an heir at law, one of the class to whom only the statute requires the extension of notice of such proceeding.

Upon the day fixed for hearing proof before the judge of probate, upon the issue of admitting the will to probate in due form of law, the attorneys on both sides agreed to waive further proceedings in the probate court, and, quoting from the agreed "case":

"Thereupon it was agreed between counsel for the said contestants and counsel for the said proponents of the will that the issue of 'will or no will' be submitted to the court of common pleas for Florence county."

The judge of probate then signed an order, consented to by Walter H. Wells, Esq., attorney for the contestants, and W. F. Clayton, Esq., attorney for the proponents:

"That the issue of 'will or no will' be and same is hereby certified to the court of common pleas for Florence county for its decision, and that the formalities required by rule 28 of the circuit court be considered waived."

It is not so stated in the record, but we assume that the probate judge made a certificate to the court of common pleas, upon which the issue was presented to that court. At any rate, the matter came up for trial before his honor, Judge Rice, and a jury, at the spring term 1913, of said court. At this trial a most remarkable situation arose. As his honor, Judge Rice, states in his order of July 7, 1913:

"At the trial of the proponents of the will (the personal representatives) were represented by Mr. W. F. Clayton and Mr. Henry Buck, and after a good deal of evidence was in, all tending to sustain the will, the court was asked to allow the parties and their attorneys a few minutes in which to consult, as they wished to settle the matter without further contest. On returning to the courtroom, Messrs. Buck and Clayton stated that their clients desired to discontinue their opposition to setting aside the will, and asked that the court allow them to withdraw from the case, which request was granted in a formal order. Thereupon Mr. Philip H. Arrowsmith, a young attorney, was requested by the proponents of the will to represent them formally, which he did, but, in accordance with the wishes of the proponents of the will, made no effort to establish the will."

Testimony was offered by the contestants against the validity of the will. The case was submitted to the jury, apparently without argument, and a verdict of "no will" was rendered. Thereafter, as his honor states, at his suggestion, the executor made a motion for a new trial, and, after considering it, his honor filed an order dated July 7, 1913, granting a new trial, upon the ground that the circumstances above detailed convinced him that there had not been a fair trial of the issue. He explained the remarkable conduct of the executor in this way: "It is due the executor, who as stated, is the son of testator, to state that I was impressed with his evident willingness and anxiety to do his full duty as executor, and appeared to cease his efforts to sustain the will only after pressure was brought to bear on him by his mother, the wife of the testator (who, we interpolate, would receive much more as an heir at law of the estate, intestate, than as a devisee under the will), and other members of his father's immediate family," regardless of the interests of his own son, the plaintiff, and other remaindermen under the will. His honor, Judge Rice, further took the position that the proponents of the will did not represent the interest of the remaindermen, and directed by his order that they be made parties to the proceeding.

Accordingly, the original summons and petition were amended by adding the remaindermen, including the plaintiff, as respondents. The amended summons and petition were entitled, as the originals were, "In the Court of Probate"; the summons being signed "H. A. Brunson, Probate Judge, Florence County," and dated October 1, 1913.

There is some question whether the summons directed to be served upon the plaintiff, Robert J. Muldrow, Jr., by the order of his honor, Judge Rice, was properly entitled and signed, and whether, as a fact, it was served upon him. As the statute does not require the summons in such a case to be served upon devisees under the will, but only upon "such persons as would have been entitled to distribution of the estate, if the deceased had died intestate," these questions are immaterial.

At the April term, 1914, of the court of common pleas, the case came up for trial before his honor, Special Judge Ramage. A day or two before the trial commenced, upon the application of certain parties connected with the case, his honor, Judge Ramage, on April 30, 1914, signed an order appointing C.J. Gasque, Esq., guardian ad litem for the infant defendants, remaindermen, who had been included among the respondents to the petition under the order of his honor, Judge Rice. Mr. Gasque filed a formal answer for the remaindermen, including the plaintiff, and the trial proceeded. Mr. Arrowsmith, representing the proponents of the will, did not take an active part in establishing the will, "as it was evident that the family had decided not to fight the case further." (Judge Dennis' decree.) Mr. Gasque, however, did take an active part, representing the remaindermen, and apparently produced all available witnesses to establish the will. The contestants produced witnesses to establish the testamentary incapacity of the testator, and the case was submitted to the jury. The result was as before, a verdict of "no will." It does not appear that a motion for a new trial was made or an appeal taken. Consequent upon the verdict of "no will," a judgment roll was made up and filed.

Thereupon the heirs of Robert J. Muldrow, Sr., proceeded to subdivide all of the real estate of which he died seized and possessed, as if there had been no will; and the land in question in this action was conveyed by all of the other heirs of the deceased to the widow, Annie G. Muldrow. This conveyance was executed in 1914, and she continued in possession until her death, at some time, not stated in the record, prior to December, 1923.

After the death of Annie G....