The opinion of the Court was delivered by
Mr. Justice Eraser.
The testator, A. J. Matheson, was a remarkable man. His education in books and the schools was limited. His education by circumstances was excellent. He was a man of good character, of bright mind, good judgment. He made up his mind quickly. He was a man of indomitable will, and full of physical energy. He was a planter on a
large scale, a merchant, a bank president, engaged largely in buying and selling real estate in Bennettsville and in the country. He owned several plantations and many city and town lots. He also was engaged in buying and selling cotton and cotton seed. In February, 1917, he suffered a stroke of paralysis, and was unconscious for several days. He partially recovered from this stroke. His malady is called paralysis. In March, 1918, Mr. Matheson executed his will, which is the subject of these proceedings. In September,' 1918, Mr. Matheson had another stroke, from which he died. His will was admitted tO' probate by the Judge of Probate for Marlboro County in solemn form. The contestants appealed, and the appeal was heard in the Court of Common Pleas with a jury. Three questions were submitted to the jury, to wit:
(1) Did A. J. Matheson, at the time the paper propounded for probate was executed, have sufficient mental capacity to make his Will and understand its contents ?
(2) Was the said alleged will procured by the undue influence of-A. D. Matheson upon the mind and will of the said A. J. Matheson, exerted before or at the time of the alleged execution of same?
(3) Is the paper writing offered for probate herein the true will and expression of A. J. Matheson?
The jury answered to each of these questions, “No.”
While there was no separate motion for a direction of a verdict in favor of the will, the proponents of the will made requests to charge containing instructions that there was no evidence to sustain a finding that the will was not the will of Mr. Matheson, and these requests were so treated in the trial of the cause and refused. From the judgment based on the finding of the jury this appeal is taken.
There was no^ claim that Mr. Matheson did not execute the will, so far as the physical requirements are concerned. The claim was that Mr. Matheson did not have sufficient
mind to execute a will, and that the will was really the work of his son, A. D. Matheson, who was the confidential clerk, procured through undue influence. Undue influence is eliminated by the verdict of the jury.
The question is: Is there any evidence that Mr. Matheson did not have mind enough to make a will ? We must, therefore, determine how much mind is necessary to make a will.
The law is clearly stated in
Gable v.
Rauch, 50 S. C., pp. 105 and 106; 27 S. E., 555, 558, where we find:
“The fourteenth exception alleged error in the charge of the Circuit Judge when he stated to the jury ‘that less mental capacity, lower degree of mental -power, is necessary (required) to make a valid will than a valid contract. This extract from a charge of the, Circuit Judge gives but a slight idea of that part of such charge which relates to the requisite mental capacity of a person making a valid will, as we shall presently show by quoting the language of the charge. Still, even the extract quoted by appellant is not without authority, even in this State. In the case of
Kirkwood v.
Gordon, 7 Rich., 479, it is said: ‘It is objected that the test of testamentary capacity furnished by the Judge’ (O’Neall, afterwards Chief Justice) ‘was error, and may have misled the jury. “I said,” says Judge O’Neall, “to the jury that the test — ‘capacity enough to make a contract’ — was not always the true rule; for sometimes it might be that a higher degree of capacity to make a contract would be required than to make a will. In making a will, if the testator had capacity enough to know his estate, the object of his affections, and to whom he wished to give it, that would be enough.” These views are well sustained by authority; quoting
Comstock v. Had
lyme, 8 Conn. R., 254;
Greenwood v.
Greenwood, 3 Curtis, appendix II.’ But the Circuit Judge left the jury in no doubt as to the law regulating the capacity required of a testator, for he said: T charge you that the test of capac
ity to make a will is this: Did the testator, at the time of the execution of the will, know what he was doing; did he know his property and the objects of his bounty; did he remember those that he was leaving out of his will, and did he do it on purpose; and did he intend to include only those that he made beneficiaries of his- will? I charge you further, that mere weakness of mind, or feebleness of mind, is not enough to invalidate a will. Incapacity is more than that. You must be satisfied before you find incapacity — you must be satisfied by the preponderance of the evidence — that Gable did not know what he was doing when he wrote that will; that he did not have 'intelligence enough to comprehend the nature and effect of what he was doing; that he did not know the property he was trying to dispose of, and the objects of his bounty, those to whom he intended to leave his estate; and you must be satisfied of that before you can find that Gable did not have mental capacity to make a will.’ Just after this language, the Circuit Judge used that quoted in the exception, but added much.”
In
Black v. Ellis,
3 Hill, 74, we find:
“The legal test of capacity being properly put to the jury, it then was necessary that the jury should decide from the facts, whether he had that much capacit}^ at the moment of execution, and a want of it at that time, the appellants were bound to show.”
In some cases there is added a requirement that the testator must know that he is disposing of property. The requirement need not complicate this case, as there is no question but that Mr. Matheson knew he was making his will. The question that concerns us here is: Is there any evidence that Mr. Matheson did not' know his estate, or the objects of his affection, or to whom he wished to give it? Upon this question this Court is- divided, so that the exception that raises this question must be overruled.
II. The next assignment of error that will be considéred is:
“By disposing of his property I mean that he must be in such condition as not to know, not to' realize, the effect of what he is doing, or realize that he is favoring one above another, or give it in a way that was not an ordinarily fair disposition of it.”
This was error. It substitutes the judgment of the jury for the judgment of the testator as to what is a fair disposition of the testator’s property. The Statute of Distributions makes what the world considers a fair disposition of property. The right to make a will carries with it the right to disregard what the world considers a fair disposition of property. In the case of
Lee’s Heirs v. Lee’s Executors,
4 McCord, 183; 17 Am. Dec., 722, we find:
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The opinion of the Court was delivered by
Mr. Justice Eraser.
The testator, A. J. Matheson, was a remarkable man. His education in books and the schools was limited. His education by circumstances was excellent. He was a man of good character, of bright mind, good judgment. He made up his mind quickly. He was a man of indomitable will, and full of physical energy. He was a planter on a
large scale, a merchant, a bank president, engaged largely in buying and selling real estate in Bennettsville and in the country. He owned several plantations and many city and town lots. He also was engaged in buying and selling cotton and cotton seed. In February, 1917, he suffered a stroke of paralysis, and was unconscious for several days. He partially recovered from this stroke. His malady is called paralysis. In March, 1918, Mr. Matheson executed his will, which is the subject of these proceedings. In September,' 1918, Mr. Matheson had another stroke, from which he died. His will was admitted tO' probate by the Judge of Probate for Marlboro County in solemn form. The contestants appealed, and the appeal was heard in the Court of Common Pleas with a jury. Three questions were submitted to the jury, to wit:
(1) Did A. J. Matheson, at the time the paper propounded for probate was executed, have sufficient mental capacity to make his Will and understand its contents ?
(2) Was the said alleged will procured by the undue influence of-A. D. Matheson upon the mind and will of the said A. J. Matheson, exerted before or at the time of the alleged execution of same?
(3) Is the paper writing offered for probate herein the true will and expression of A. J. Matheson?
The jury answered to each of these questions, “No.”
While there was no separate motion for a direction of a verdict in favor of the will, the proponents of the will made requests to charge containing instructions that there was no evidence to sustain a finding that the will was not the will of Mr. Matheson, and these requests were so treated in the trial of the cause and refused. From the judgment based on the finding of the jury this appeal is taken.
There was no^ claim that Mr. Matheson did not execute the will, so far as the physical requirements are concerned. The claim was that Mr. Matheson did not have sufficient
mind to execute a will, and that the will was really the work of his son, A. D. Matheson, who was the confidential clerk, procured through undue influence. Undue influence is eliminated by the verdict of the jury.
The question is: Is there any evidence that Mr. Matheson did not have mind enough to make a will ? We must, therefore, determine how much mind is necessary to make a will.
The law is clearly stated in
Gable v.
Rauch, 50 S. C., pp. 105 and 106; 27 S. E., 555, 558, where we find:
“The fourteenth exception alleged error in the charge of the Circuit Judge when he stated to the jury ‘that less mental capacity, lower degree of mental -power, is necessary (required) to make a valid will than a valid contract. This extract from a charge of the, Circuit Judge gives but a slight idea of that part of such charge which relates to the requisite mental capacity of a person making a valid will, as we shall presently show by quoting the language of the charge. Still, even the extract quoted by appellant is not without authority, even in this State. In the case of
Kirkwood v.
Gordon, 7 Rich., 479, it is said: ‘It is objected that the test of testamentary capacity furnished by the Judge’ (O’Neall, afterwards Chief Justice) ‘was error, and may have misled the jury. “I said,” says Judge O’Neall, “to the jury that the test — ‘capacity enough to make a contract’ — was not always the true rule; for sometimes it might be that a higher degree of capacity to make a contract would be required than to make a will. In making a will, if the testator had capacity enough to know his estate, the object of his affections, and to whom he wished to give it, that would be enough.” These views are well sustained by authority; quoting
Comstock v. Had
lyme, 8 Conn. R., 254;
Greenwood v.
Greenwood, 3 Curtis, appendix II.’ But the Circuit Judge left the jury in no doubt as to the law regulating the capacity required of a testator, for he said: T charge you that the test of capac
ity to make a will is this: Did the testator, at the time of the execution of the will, know what he was doing; did he know his property and the objects of his bounty; did he remember those that he was leaving out of his will, and did he do it on purpose; and did he intend to include only those that he made beneficiaries of his- will? I charge you further, that mere weakness of mind, or feebleness of mind, is not enough to invalidate a will. Incapacity is more than that. You must be satisfied before you find incapacity — you must be satisfied by the preponderance of the evidence — that Gable did not know what he was doing when he wrote that will; that he did not have 'intelligence enough to comprehend the nature and effect of what he was doing; that he did not know the property he was trying to dispose of, and the objects of his bounty, those to whom he intended to leave his estate; and you must be satisfied of that before you can find that Gable did not have mental capacity to make a will.’ Just after this language, the Circuit Judge used that quoted in the exception, but added much.”
In
Black v. Ellis,
3 Hill, 74, we find:
“The legal test of capacity being properly put to the jury, it then was necessary that the jury should decide from the facts, whether he had that much capacit}^ at the moment of execution, and a want of it at that time, the appellants were bound to show.”
In some cases there is added a requirement that the testator must know that he is disposing of property. The requirement need not complicate this case, as there is no question but that Mr. Matheson knew he was making his will. The question that concerns us here is: Is there any evidence that Mr. Matheson did not' know his estate, or the objects of his affection, or to whom he wished to give it? Upon this question this Court is- divided, so that the exception that raises this question must be overruled.
II. The next assignment of error that will be considéred is:
“By disposing of his property I mean that he must be in such condition as not to know, not to' realize, the effect of what he is doing, or realize that he is favoring one above another, or give it in a way that was not an ordinarily fair disposition of it.”
This was error. It substitutes the judgment of the jury for the judgment of the testator as to what is a fair disposition of the testator’s property. The Statute of Distributions makes what the world considers a fair disposition of property. The right to make a will carries with it the right to disregard what the world considers a fair disposition of property. In the case of
Lee’s Heirs v. Lee’s Executors,
4 McCord, 183; 17 Am. Dec., 722, we find:
“That a will is unjust to one’s relations is no legal reason that it should be considered an irrational act. The law puts no restrictions upon a man’s right to dispose of his property in any way his partialities, or pride, or caprice may prompt him.”
This exception is sustained.
III. The next assignment of error is that his Honor charged the jury that it takes more mind to dispose of a large estate than it does to dispose of a small estate. We know of no authority for this statement. Wills are frequently made when the testator is in extremis, when his body is weakened by disease and his mind is weak, too. As has already been said, the test of capácity to make a will is this: Did the testator, at the time of the execution of the will, know what he was doing; did he know his property and the objects of his bounty; did he remember those that he was leaving out of his will, and did he do it on purpose, etc? When it is said the testator must know his property, it means know it substantially. A man of large and diversified interests is not deprived of the power to make a will because he has for the moment forgotten a
purchase or sale. The question is: Is the will an irrational act ?
The other questions refer to matters incident to that trial, and are not likely to be repeated. They need not be considered.
The case has not been prepared in accordance with the rule, and appellant must pa}! for the printing of the case. Much irrelevant testimony had been introduced. This Court understands the embarrassment of the parties to this proceeding, and why they should have refrained from objecting to incompetent testimony; but a disregard of the rules of evidence only leads to confusion. The question is: Did Mr. Matheson know what he was doing? as above explained and only testimony that throws light upon that question should be allowed. Let the next trial be according to law.
The judgment is reversed, and a new trial ordered as to Mr. Matheson’s capacity to make a will.
Mr. Chiee Justice Gary and Mr. Justice Cothran concur.