34 S.C.L. 44 | S.C. Ct. App. | 1848
delivered the opinion of the Court,
This case maybe considered under three heads: 1. Undue influence in the execution of the will. 2. Undue influence in preventing the revocation. 3. Fraud and other circumstances rendering the will void.
1. The doctrine of undue influence, as stated by the Judge below, in his charge to the jury, meets with the approbation of this Court. The cases of Farr v. Thomson, and O’Neall, executor, v. Farr, are full and clear statements of the rules by which cases of this kind are to be regulated. In Farr v. Thomson, our late brother Earle, with his accustomed clearness and precision, stated the result of his examination of that which constituted such an exemption from undue influence
But even in such a case of weakness, “ it is not unlawful” to lead such a mind, “ by honest intercessions, or modest persuasions, to make a will.” If, however, the will of such an one be procured by fair and flattering false speeches, or he be in the power of another, and to increase his comfort, or insure his safety, in health or property; or if it be the result of great importunity addressed to such weakness, — in these and similar cases, it would be avoided. In this case the testator was a man of weak infirm health, but up to the period
2. The next matter to be considered, is that of undue in-, fluence in preventing the revocation, and thus creating, (if true,) as the parties suppose, an implied revocation. Here again it might be enough to say, that after the supposed interference or influence to prevent the revocation, the testator had the opportunity to revoke his will, and yet did not; and this, according to iSwinb. 991, destroys the conclusion, which might, without it, have been drawn from the influence exercised. For the testator, after the time proved by Jesse Moats, Mrs. Chandler, and Major Chandler, when, as they allege, the appellee exercised a controlling influence to prevent the revocation of the will, was twice at Newberry Court House, and Col. Fair, in whose possession the will was, was at both of those dimes, at home.
But a will executed according to our Acts of ’89 and ’24, cannot be thus revoked. They require in real and personal estate, that a will can only be revoked in three ways : 1st. By an instrument in writing, executed with the same solemnities as the will itself. 2d. By obliteration. 3d. By burning or destroying. The case of Doe on the demise of Reed v. Harris, was a case of freehold devised to the defendant, claimed by the heir. It appeared that the testator intending to revoke the will, threw it, enclosed- in an envelope, on the fire; the|devisee standing by snatched it off; the envelope was only slightly burned, the will was untouched; the de-visee secreted it from him, and afterwards induced him to believe that she had burned it herself. It was held by Den-man, Patterson, Williams, and Coleridge, of the King’s bench, that this was no revocation within the Statute of Frauds, the provision of which, in that respect, is identical with our
3. This makes it necessary to look at the third inquiry, — were there such facts proved, in this case, as shewed that this will was prevented from being revoked by fraud, and being inoperative, until the testator’s death, it is therefore to be regarded as infected by fraud, and therefore void ? I am not prepared to say, that even a fraudulent prevention of revocation would set aside the will. For, at most, to say so, would be only giving eifect to that, in another form, which it is denied can have effect as a revocation. But assuming that it might have such an effect, in this case there is no pretence to say that any such fraud existed. It most abundantly appears that the testator, for very good reasons, might have wished to place his property in other hands than his heirs: his discontents with his will have been mostly proved by Mrs. Chandler and her husband — his statements to the former may all be very well accounted for in his desire to conciliate her, and his belief that the appellee would carry out his wishes as to her; — as to the proof of Major Chandler, it may be remarked that it is hardly likely that a sensible man, as the appellee is represented to be, would have made such statements as he proved, to the very man who would use them against him. As to Jesse Moats’s proof, there was great reason to believe he was mistaken. For there certainly was as strong proof of an alibi as ever I heard. But put all they have proved together as true, and it only makes this case, that in April, ’47, the testator wished to alter his will, that the appellee promised that he should have that opportunity'the next day, by bringing the will and Col. Fair, in whose possession it was, to his house, that the appel-lee failed to comply with this promise, — that again he told him every thing must remain as it was, or he (the appellee) would quit him, and that he (the appellee) was interested,
The various other grounds of appeal need no other answer than such as are given in the report.
The motion is dismissed.