Smith v. Whetstone

• Decision Date: 07 August 1946
• Docket Number: 15864.
• Citation: 39 S.E.2d 127,209 S.C. 78
• Parties: SMITH v. WHETSTONE et al.
• Court: South Carolina Supreme Court

39 S.E.2d 127

209 S.C. 78

SMITH v. WHETSTONE et al.

No. 15864.

Supreme Court of South Carolina

August 7, 1946

T. P. Taylor, of Columbia, and L. Marion Gressette and T. A. Houser, both of St. Matthews, for appellant.

J A. Merritt, of St. Matthews, and Julian S. Wolfe, of Orangeburg, for respondents.

FISHBURNE, Justice.

J. M Whetstone, late of Calhoun County, died testate in July 1944, leaving as his sole heirs at law his widow, Sallie F Whetstone, and six children: Ella Whetstone Smith, Pearl Whetstone Rast, May Whetstone Berry, Ernest W. Whetstone Dixon Whetstone, and Dreher Whetstone. At the time of his death he was eighty-four years of age. His will was executed March 5, 1943, and a codicil thereto was executed July 2, 1943, both of which were offered for probate by Ella Whetstone Smith, who was therein designated as executrix. A son, Ernest W. Whetstone, was named as executor, but as will hereafter be shown, he appears in this litigation as a contestant and not a proponent of these testaments.

The validity of the will and the codicil was contested by all of the above-named sons and one daughter, Mrs. Rast. They contended that their father, the testator, lacked mental capacity to dispose of his property by will, and that both will and codicil were procured through constraint and undue influence exercised over him at the time of their execution by the two daughters, Mrs. Smith and Mrs. Berry, and presumably by his wife and a grandson, Otis H. Smith. The hearing in the probate court resulted in an order admitting the will to probate in due form of law. It was held that the testator possessed the requisite mental capacity and that in its execution no undue influence was exercised over him. With reference to the codicil, the court likewise found that the testator possessed sufficient mental capacity, but held the codicil to be invalid upon the ground that Mr. Whetstone was unduly influenced in its execution.

Upon appeal, the case was tried de novo in the circuit court before Judge Henderson and a jury, and the same result was reached. The judge by a directed verdict, upheld the validity of the will on the issues of mental capacity and undue influence, and also directed a verdict for the executrix as to the codicil on the issue of mental capacity; but refused to direct a verdict as to the codicil on the question of undue influence, thus leaving that as the only issue for the jury. On this issue, the jury rendered a verdict in favor of the contestants, and against the validity of the codicil.

The principal assignment of error is that the verdict of the jury is not justified by the evidence. It is contended by the executrix in this appeal that there was no evidence of undue influence in the case warranting the submission of that question to the jury, and that the court erred in failing to direct a verdict on this issue in favor of the validity of the codicil.

What is and what is not undue influence has been considered and declared in our former decisions, and we need do little more than refer to them here: Woodward v. James, 3 Strob. 552, 34 S.C.L. 288, 51 Am.Dec. 649; Farr v. Thompson, Cheves, 37, 25 S.C.L. 15; O'Neal v. Farr, 1 Rich. 80, 30 S.C.L. 33; Floyd v. Floyd, 3 Strob. 44, 34 S.C.L. 23, 49 Am.Dec. 626; Means v. Means, 5 Strob. 167, 36 S.C.L. 86; Du Bose v. Kell, 90 S.C. 196, 71 S.E. 371; Annotation, 31 Am.St.Rep. 670.

In the well-considered case of Farr v. Thompson, supra, the court unanimously laid down the law as follows: 'Every person of reasonable mind and sane memory may dispose of his property by will. * * * The true inquiry always is, whether there exists the animus testandi; for without that, the instrument purporting to be a will is of no effect in law. The party, therefore, must be free, and under no compulsion from such threat or violence as may reasonably be supposed to move a constant man. Even in cases of such constraint or fear, if when they are over, the testator confirms the will, it is made good. So likewise, wills procured to be made by artful misrepresentations and fraudulent contrivances, are void. But it is not unlawful for a man, by honest intercessions and modest persuasions to procure a will to be made in his behalf. * * *'

And in Floyd v. Floyd, supra, it is stated: 'In Williams on Executors, 34, it is said very justly,--'the influence to vitiate an act must amount to force and coercion, destroying free agency; it must not be the influence of affection and attachment; it must not be the mere desire of gratifying the wishes of another, for that would be a very strong ground in support of a testamentary act; further, there must be proof that the act was obtained by this coercion; by importunity which could not be resisted; that it was done merely for the sake of peace; so that the motive was tantamount to force and fear.''

From the nature of the case, the evidence of undue influence will be mainly circumstantial. It is not usually exercised openly, in the presence of others, so that it can be directly proved. But the circumstances relied on to show it 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. Woodward v. James, 3 Strob. 552, 34 S.C.L. 288, 51 Am.Dec. 649. In Means v. Means, supra, it is said: '* * * An allegation of undue influence should be proved, so that the judges of fact, having proper conceptions of what undue influence is, may perceive by whom and in what way it has been exerted. * * *'

The burden of proof rests upon the contestants to establish the existence of undue influence. The general rule is that when the formal execution of a will is admitted or proved, a prima facie case is made out warranting the probate of such will, and the burden of proof is then on the contestant to prove undue influence, incapacity or other objection to the will, and this burden remains on him to the end. Goethe v. Browning, 146 S.C. 7, 143 S.E. 362; Mordecai v. Canty, 86 S.C. 470, 68 S.E. 1049; Anderson v. Wall, 114 S.C. 275, 103 S.E. 562; Thames v. Rouse, 82 S.C. 40, 62 S.E. 254.

As shown by the cases cited hereinabove, in the inquiry as to the sufficiency of evidence to support a charge of undue influence in the procuring of a will, it is not sufficient to condemn and avoid the will to find that there was influence which affected the testator's disposition of his property. In order to vitiate his act, it must be such a degree of influence as dominated his will, took away his free agency, and prevented the exercise of judgment and choice by him. There may have been advice, suggestion or importunity going to affect his purpose and act in the disposition he chooses to make; yet if he had testamentary capacity to dispose of his property, and was free and unconstrained in his volition at the time of making the codicil, the influence that may have inspired it or any of its provisions will not be that influence which the law denounces as undue. For, as was said in O'Neall v. Farr, 1 Rich. 80, 30 S.C.L. 33, 'Perhaps no man has ever existed who was so entirely self-willed as to be wholly uninfluenced by the opinions and wishes of those with whom he was connected. Not merely in the ordinary affairs of life, but in the disposal of his property, even the sternest man is sometimes influenced by the wishes and advice of a friend, a wife' etc.

That Mr. Whetstone, the testator, was physically infirm and enfeebled by the intermittent illnesses of the aged is conceded throughout the record. He had been living in the town of St. Matthews for years, and the members of his household were his wife, Sallie F. Whetstone, aged eighty-one years, his daughter, Ella Whetstone Smith, the executrix of his will, and his grandson, Otis H. Smith, Jr. Mrs. Smith had lived with him all of her life, and nursed and cared for him during hs declining years. Her son, Otis H. Smith, Jr., was born and reared in testator's home.

Under the will, executed in March, 1943, which has been validated by this litigation, Mr. Whetstone devised to his daughter, Ella Whetstone Smith, his home place farm containing 165 acres, during her life, and after her death to his grandson, Otis H. Smith, for life. Upon the death of the latter, he provided for contingent remainders to the children of Otis H. Smith, upon failure of which the property was devised in equal shares to his three sons, Ernest W. Whetstone, Dixon Whetstone, and Dreher Whetstone, and in case any one of them should then be dead, then to their lawful issue. He devised the remainder of his property, real and personal, to his wife, Sallie F. Whetstone, for life, and upon her death provided that the estate should be divided as follows: The Shell Rock Place, containing 328 acres, to his two sons, Ernest W. Whetstone and Dixon Whetstone, in equal shares, in fee simple; his Houser Place, containing 235 acres, to his son, Dreher, in fee simple. All the rest and residue of his estate was given in equal shares to his three sons and three daughters.

Between the execution of the will, in March, 1943, and the execution of the codicil, in July, 1943, Mr. Whetstone had acquired by devise, real estate and a considerable amount in cash from his brother, W. H. Whetstone. Desiring to make disposition of this after-acquired property, he went to the law office of Mr. J. A. Merritt, accompanied by his daughter, Mrs. Berry, in order to execute a codicil to his will. By this codicil he specifically confirmed and ratified his will in every respect and recited therein that he was making the codicil in order to dispose of the real estate and cash devised to him by his brother.

Mr Merritt, an attorney of unquestioned...