Wingard Et Al.

Decision Date09 March 1945
Docket NumberNo. 15721.,15721.
Citation33 S.E.2d. 390
PartiesWINGARD et al. v. HENNESSEE. In re HENNESSEE'S ESTATE.
CourtSouth Carolina Supreme Court

Appeal from Common Pleas Circuit Court, of Fairfield County; A. L. Gaston, Judge.

Action by J. E. Hennessee and others against Doris Hennessee for advice and instructions of court with regard to power of executor and trustee concerning the estate of J. R. Hennessee, deceased, wherein sales of testator's lands were ordered, and rule to show cause was issued against J. B. Wingard and others, successful bidders at the sale who refused to comply with their bids. From an adverse judgment, the respondents in rule to show cause appeal.

Affirmed.

Douglas & Douglas, of Winnsboro, for appellants.

George H. Davis and L. F. Lanford, both of Columbia, for respondent.

STUKES, Justice.

J. R. Hennessee, late of Fairfield County, died in the U. S. Veterans Hospital at Columbia on August 17, 1942, leaving of force his will which was dated and executed at the hospital on August 13th, but had been previously prepared under his direction by his attorney in Winnsboro. The execution was supervised by the attorney of the Veterans Administration and there is no question in this proceeding but that it was exactly, legally done.

The testator was survived by seven adult children, but one of them, an unmarried daughter, Doris, now above forty-five years of age. is, and always has been, feebleminded. There has heretofore been no committee of her estate, presumably be cause she had no property. Omitting formal parts, the will is as follows:

"Item 1. I give, devise and bequeath to my son Ben all of my property of whatsoever kind and wheresoever situated, in trust nevertheless, to hold and manage same for the benefit of my afflicted daughter, Doris, and himself, and for the support and maintenance of my said daughter in a proper and reasonable manner during the term of her natural life, and at her death, to my said son Ben in fee simple forever. I am not unmindful of my other children but I feel confident that my son Ben will see that all of my said afflicted daughter's needs are taken care of and that he is in a better position to do so than any of the others. While he is to have no authority to sell my lands during the lifetime of my said daughter, he is hereby given ample and full power to sell any and all of the timber or pulpwood on my lands, if he deems it necessary.

"Item 2. I hereby appoint my said son Ben the Executor of this my Will, without bond."

It was duly probated in common form in the Probate Court of Fairfield County about September 5, 1942, and Ben qualified as executor. There was personal property of the value of several thousand dollars and four tracts of land, 88 acres valued at $500,269.1 acres, 258.5 acres and 334 acres.

Dissatisfaction developed among the children who were not beneficiaries of their father's will and Ben appears to have acceded to their demands that they be admitted to the benefits. Some of them lived in Columbia and all, except the afflicted one, consulted the Columbia attorneys who appear in this appeal for the plaintiffs-respondents. All, with the same exception, executed a written agreement on May 8, 1943, wherein the death of their father and the terms of his will were recited, that the contracting parties omitted from the will had determined to take action for the purpose of invalidating it, upon the stated ground that testator was without the requisite mental capacity, but that because of the cost of litigation it was felt that it was to the best interest of the parties and to the best interest of their sister, Doris, a person non compos mentis, that the estate be divided among all the children by mutual agreement, wherefore it was agreed that all the property, not theretofore disposed of by the executor and trustee, be sold at public auction under an order of the Court and that after the payment of the debts ofthe decedent the proceeds be divided, one-fourth to the afflicted sister absolutely, and the remaining three-fourths equally among the other six children of their father, but that the 88 acre tract be sold privately for not less than $500 and a model A Ford automobile to the daughter, Virginia, for $100, and that the daughter, Mrs. J. W. Evans, be appointed committee for her incompetent sister, Doris.

Shortly thereafter this action was instituted in the Court of Common Pleas wherein all testator's competent children were plaintiffs, Ben, individually and as executor and trustee of his father's estate, against Doris, sole defendant. The verified complaint contained allegations of the foregoing facts and the lands were referred to as the home place, consisting of 861.5 acres, and the remainder, separately located, 88 acres, of which a detailed description was attached to the complaint as an exhibit; that the parties had executed the agreement by way of compromise but that question has arisen as to the power of Ben, as executor and trustee, to execute the agreement, and that the action was brought for the purpose of "securing the advice and instruction of the Court with regard to his powers and details concerning said trust estate." And it was alleged that the arrangement would be to the advantage of the incompetent sister for she would receive one-fourth of the whole estate in fee whereas the will gave her only a life estate as cestui que trust, and she would receive only one-seventh should the will be set aside. There were other allegations which, however, are unimportant in this appeal. The prayer was in great detail, that the contracted settlement be confirmed and Ben be directed to carry it out, that the 88 acres be sold privately for $500, a 1939 Ford be similarly sold to Ben for $450, a model A Ford to Virginia for $100, and that all the remainder of the estate be sold at public auction after notice and the proceeds distributed in accord with the agreement, and finally that Mrs. Evans be appointed committee for Doris, with bond.

A respected member of the Columbia bar was appointed guardian ad litem for the incompetent defendant and filed a formal answer denying knowledge or information sufficient to form a belief as to the allegations of the complaint and submitting her rights to the protection of the Court. For former pronouncements of this Court relating to the duties of the guardian ad litem of a defendant non sui juris, see Simpson v. Doggett, 159 S.C. 294, 156 S.E. 771, and cases there cited. However, more than mere protection of the ward's rights finally resulted in this instance, as will be seen.

The matter was heard by the Judge of the circuit at chambers at which testimony was taken from some of the parties but it was not reduced to writing, and on October 2, 1943, decree was rendered reciting that all of the parties were present at the hearing or duly represented by counsel, that the main intent of the testator was to take care of his feeble-minded daughter but that there was serious question whether he had the necessary mental capacity to make his will and that the Court was assured by the testimony of Doris' brothers and sisters that they are willing to take good care of her and furnish her with a home; that it was the Court's opinion that it would be to the best interests of all the parties to approve and confirm the agreement of those sui juris, which was done; and it was adjudged that the will was null and void upon condition that the provisions of the decree be complied with by the parties. It was further ordered that Doris take one-fourth interest in fee in all of the assets, real and personal, of the estate, after payment of the debts of the latter and the costs of the action; that a committee be appointed for Doris in the Probate Court, with the usual duties; that the 88 acre tract of land be sold for $500, and the Clerk made deed; that the 1939 Ford be sold to Ben for $450, and the model A Ford to Virginia for $100; and that the Clerk advertise and sell publicly the 861 acres of land, first separately in three parcels, then as a whole, and whichever method should yield the most should be accepted, and that upon compliance by the bidder or bidders, deed or deeds be made and he or they be let into possession; that one-fourth of the proceeds be paid to a duly appointed committee for Doris and the remaining three-fourths paid in equal shares to the six plaintiffs who are, as seen, the brothers and sisters of Doris; and that the personal property of the estate be similarly sold by the Clerk, at public or private sale, as a whole or in parcels, whichever he deem in the best interest of the parties, and that the proceeds of all sales be used first for the payment of the debts of the estate, the costs and fees of the action, and the remainder distributed as already stated with respect to the proceeds of the sale of the real estate.

Finally it was provided that a fee of $500, be paid to plaintiff's attorney, found to be reasonable, all out of the plaintiff's shares of the proceeds, and $25.00 to the guardian ad litem for his services; and the decree concluded as follows: "This opinion is for the purpose of permitting any parties herein to apply to this Court upon four (4) days' notice for such other and further review as may be necessary to carry out the terms of this decree."

The sales only of the lands are involved in this appeal. From the final decree, hereinafter adverted to, the plaintiffs excepted but later they shifted solely to the position of respondents and...

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