Corontzes v. Trapalis

191 S.E.2d 523, 259 S.C. 244, 1972 S.C. LEXIS 234

• Court: Supreme Court of South Carolina
• Decided: August 29, 1972
• Docket: 19476
• Status: Published

Opinions

Brailsford, Justice:

I am convinced that the evidence in this case fails to meet the strict standard of proof required to establish an oral contract to make a will.

Plaintiff’s reliance is principally upon the testimony of her husband as to statements made to him by her uncle over a period of years. These statements abundantly establish the love and affection which existed between uncle and niece, her devoted service to him and his ailing wife, his gratitude and intention to reward her by leaving substantially all of his property to her upon his death. However, with perhaps one exception, these conversations had little, if any, tendency to establish that the uncle was contractually obligated to his niece.

The testimony of the only other witnesses on the point strongly corroborates the husband’s testimony as to the warm relationship between uncle and niece and his testamentary intention toward her, but has no tendency to establish a contractural obligation.

The exception referred to is the husband’s testimony as to a conversation between the uncle and niece, which is quoted in the opinion by the Chief Justice, in which he expressed a desire to leave certain real property to her two brothers, to which she assented. While it may be inferred from this testimony that the uncle acknowledged a contractual obligation to devise his property to his niece, it must be remembered that the testimony came from a naturally biased witness, who did not undertake to quote the conversation, merely giving his impression of its substance and effect.

The opinion of the Chief Justice relies heavily upon the rule prevailing in some jursidictions that under appropriate circumstances the execution of a conforming will, although invalid, is regarded as corroborative of other evidence that a contract to make the will existed. This was also emphasized in the circuit court where the special master expressly held that but for the uncle’s attempt to execute a conforming will, the evidence would be adjudged insufficient to establish a contractual obligation to his niece. Apparently overlooked by counsel and the court was the rule prevailing in this State that an attempted will which makes no reference to a contract to devise is not competent evidence of the existence of such a contract. Young v. Levy, 206 S. C. 1, 32 S. E. (2d) 889, 895 (1945).

But even if we should adopt the rule followed elsewhere on this point, reliance upon it would be misplaced under the facts of this case. The will was not executed until nearly twenty years after the uncle allegedly had become contractually obligated to devise his estate to his niece. It seems farfetched to attribute the attempt to make a will in 1966 to an obligation incurred by the uncle in 1947 when his niece responded to his invitation to move into his Charleston home. Furthermore, the promise which the niece attempted to establish was the devise of all of the uncle’s property to her. The record shows that upon his death, within a few weeks after signing the purported will, the uncle had bank accounts and accounts in savings and loan institutions totaling $25,872.33 and other personal property. Yet, he did not attempt to dispose of any of this considerable portion of his estate to her. Even if the purported will had been properly executed, his personal estate, with the exception of two bequests of $1,000.00 each to a church in Charleston and one in Greece, would have passed as intestate property. Clearly, the terms of the attempted will did not conform to the claimed contract.

I must conclude on the whole case, that, as in Caulder v. Knox, 251 S. C. 337, 162 S. E. (2d) 262 (1968), “the proof in this case is not clear, cogent and convincing, nor does it compel conviction that the contract was actually made.” 251 S. C. at 347, 162 S. E. (2d) at 267.

The foregoing opinion having been concurred in by a majority becomes the judgment of the Court.

Reversed and remanded.

Bussey and Littlejohn, JJ., concur. Moss, C. J., and Lewis, J., dissent.