Henson v. Wolfe , 130 S.C. 273 ( 1924 )

November 13, 1924. The opinion of the Court was delivered by "Lexius Henson was a colored citizen of Anderson in this State where he had resided up until his death, for a period of 12 or 15 years. He died November, 1920, leaving of force and effect his will, wherein his personal friend and attorney, the respondent herein, was the sole beneficiary. In 1919 Mr. Wolfe, the beneficiary, took up his duties in the State Capitol as Attorney General, and in consequence thereof he did not learn of Henson's death till on or about April, 1922, when on a visit to his home town of Anderson. He immediately had the will proved in common form and admitted to probate by Hon. W.P. Nicholson, Judge of Probate for Anderson County. At the same time he applied for domiciliary letters of administration, and duly qualified and gave bond in this capacity. The appraisal of the decedent's estate disclosed the fact that its entire corpus consisted of personalty, very nearly all of which was situate in the City of Anderson, Anderson County, this State. Wolfe,as Adm'r., v. Bank, 123 S.C. 208; 116 S.E., 451.

"On May 4, 1923, the appellants petitioned the Judge of Probate that the respondent be required to prove the will in solemn form. By their guardian ad litem, an official of the bank, the will was contested on the following grounds: (1) Lack of mental capacity on the part of the testator; (2) will not executed in manner prescribed by law of South Carolina; (3) undue influence inducing the signing of the will on the part of the beneficiary, consciously or unconsciously exerted; (4) in contravention of law of attorney and client.

"The matter was heard by the newly elected Judge of Probate, H.E. Bailey, succeeding W.P. Nicholson. Neither the appellants nor other witnesses in their behalf were present before the Judge of Probate; the contestants relying upon the testimony adduced on behalf of the proponent. Notwithstanding, the will was declared a nullity. From this decree the proponent duly appealed to the Circuit Court upon a certified transcript of the record under Section 5353, Vol. 3, Civil Code 1922, and Section 188, Vol. 1, Code of Civil Procedure 1922, and pursuant to the practice outlined in Meier v. Kornahrens et al., 113 S.C. 270; 102 S.E., 285. Both sides gave notice of proposed issues to be framed for the jury; those proposed by the contestants embracing, among others, the question of residence of the deceased.

"The Court, Judge H.F. Rice, presiding, after due hearing, at the October term of the Court of Common Pleas, and under date of October 11, 1923, signed an order fixing the issues for the jury, to wit: (1) Was the paper propounded as the will of Lexius P. Henson duly and legally executed? (2) When said paper was executed, did Lexius P. Henson have testamentary capacity? (3) Is the paper propounded the true last will and testament of Lexius P. Henson?

"The contestants did not appeal from this order of October 11, and the case stood for trial at the next ensuing December term of the Court. When the case was called accordingly, contestants renewed their motion that the issue of residence of the deceased be submitted to the jury. The motion was refused; the Court expressing the opinion that the order of October 11 fixed the issues, and from this there had been no appeal.

"At the conclusion of the testimony, counsel for the proponent moved the Court for a directed verdict on the ground that there had been adduced on the part of the contestants no evidence putting in issue the questions of fact, and that the proof adduced on the part of the proponent affirmatively and conclusively established the will and entitled it to probate in due form of law. The Court did not summarily grant this motion, but at some length, gave his reasons for his action in so doing. From the verdict and order of the Court, this appeal is taken based upon five exceptions."

Exception 1 alleges error in refusing to submit to the jury the issue of residence of the deceased at the time of his death. No such issue was made in the Probate Court when the will was attacked there. The record shows that on April 18, 1922, the will was admitted to probate in common form by the Judge of Probate for Anderson County as the will of Lexius Henson, and at the same time Wolfe applied for letters of administration, and thereafter in due time gave bond and qualified as domiciliary administrator with will annexed. All the proceedings show and recite that Henson was a resident of Anderson County, and that the bulk of his estate was in Anderson County, hence both residence and estate were sufficient for the Probate Court of Anderson County to acquire jurisdiction.

If Henson was temporarily absent from his domicile, and died in another State, then that State would not acquire jurisdiction, but the Court of his domicile would be the proper place. Section 5349, Vol. 3, Civil Code 1922; Section 168, Vol. 1, Code of Civil Procedure 1922; Section 179, Code of Civil Procedure 1922; Section 187, Code of Civil Procedure 1922. Fultz v. McKnight, 125 S.C. 115;118 S.E., 38.

We see no error on the part of his Honor in refusing to submit to the jury the place of residence of the deceased at the time of his death on the trial of the issue of "Will or no will."

Exceptions 2, 3, and 4 are overruled as being without merit, as the appellant was in no manner prejudiced by the same.

Exception 5 is overruled. Under the evidence there was but one inference that could be drawn — that it was the will of the deceased in writing, signed by him and attested by three witnesses at his request and in the presence of each other; that the maker had sufficient testamentary capacity; and that no undue influence was used.

The appellants have failed to sustain any of their exceptions. Judge Rice was clearly right in directing a verdict under the evidence in the case; no other inference could be drawn.

All exceptions are overruled, and judgment affirmed.

MR. JUSTICE MARION and MR. ACTING ASSOCIATE JUSTICE M.L. SMITH concur.

MR. JUSTICE FRASER: I think there was evidence enough to carry the case to the jury.

MR. JUSTICE COTHRAN: I concur in the above dissent, and think also that exceptions 2, 3, and 4 should have been sustained.