Citation Codes

Equivalent Citations

citation codes

Docket Number

17579

Attorney(S)

Mr. Hugh O. Hanna, Esq., of Hampton, for Appellant, cites: As to where fraud is involved, a party has six years in which to attack will: 224 S.C. 331, 79 S.E.2d 146; 44 S.C. 378, 22 S.E. 412. Mr. Robert Peters, Jr., Esq., of Hampton, for Respondent, cites: As to statutory six months period, in which to attack Will, being conclusive: 178 S.C. 194, 182 S.E. 640; 214 S.C. 247, 52 S.E.2d 192; 219 S.C. 1, 63 S.E.2d 811. Mr. Hugh O. Hanna, Esq., of Hampton, for Appellant, in Reply, cites: As to rules of equity being applicable here: 82 S.C. 12, 62 S.E. 1116; 19 Am. Jur. 156, Equity, Par. 172.

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Smart Summary

Case Summary: Henry Wooten v. Sallie Wooten, Executrix (Supreme Court of South Carolina, Nov. 6, 1959)

Factual and Procedural Background

This appeal arises from an order of the Court of Common Pleas of Hampton County affirming the Probate Court's dismissal of the appellant's petition. The will at issue was admitted to probate in common form on March 8, 1957. On January 27, 1958, the appellant filed a petition in the Probate Court seeking to have the will proven in solemn form and alleging various factual and legal defects. The Probate Judge dismissed the petition on the ground that it was not filed within the time specified by Section 19-255, Code of Laws of South Carolina, 1952, as amended (a six-month statutory period). The appellant appealed to the Circuit Court. At the hearing before Judge Brailsford, the appellant alleged: (1) the three witnesses were not all present together when the will was executed; (2) the decedent was under undue and fraudulent influences when making the will; and (3) the will violated a prior contract in favor of the appellant. The respondent stipulated, for the purpose of appeal only, that if the witnesses were called they would testify that they were not all present together and in the presence of each other when the testator signed the will, but the respondent persisted in moving to dismiss on the ground that the petition was filed more than six months after probate in common form.

Legal Issues Presented

Whether a petition to require proof of a will in solemn form can be maintained if filed more than six months after the will was admitted to probate in common form under the applicable statute (Section 19-255, Code of Laws of South Carolina, 1952, as amended).
Whether allegations of witnesses not being present together, the testator's alleged undue and fraudulent influences, or an asserted prior contract constitute exceptions to the six-month statutory period for attacking a probate in common form.

Arguments of the Parties

Appellant's Arguments

The petition alleged the attesting witnesses were not present together in the presence of each other at the time the testator signed the will.
The petition alleged the testator was under undue and fraudulent influences at the time of executing the will.
The petition alleged the will violated a prior contract to make a will in favor of the appellant.
The appellant proposed to call witnesses to support these allegations at a hearing to require proof in solemn form.

Respondent's Arguments

The respondent moved to dismiss the petition because it was not filed within the statutory time period specified by Section 19-255 — i.e., more than six months had elapsed since the will was admitted to probate in common form.
For purposes of the appeal only, the respondent stipulated that the witnesses would testify that they were not all present together when the testator signed the will, but nonetheless maintained that the petition should be dismissed because of the expiration of the six-month period.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Wilkinson v. Wilkinson, 178 S.C. 194, 182 S.E. 640	Holds that a collateral attack in the Court of Common Pleas cannot be made on a Probate Court judgment admitting a will to probate in common form; discusses statutory time limits and disabilities affecting the period to require proof in solemn form.	The Court relied on Wilkinson to support the proposition that statutory time limits govern challenges to probate in common form and that collateral attacks in Common Pleas are restricted. The opinion quoted Wilkinson's discussion concerning the Legislature's treatment of disabilities and time periods.
Kinard v. Riddlehoover, 3 Rich. 258	Earlier case establishing that parties in interest should have a specified period (historically four years) to require proof in solemn form after probate in common form, subject to rules about legal disabilities.	The Court referenced Kinard (through its discussion in Wilkinson) to explain the historical backdrop for the statutory scheme and to show that the Legislature subsequently restricted the disabilities to infancy when amending the statute.
Davis v. Davis, 214 S.C. 247, 52 S.E.2d 192	States that probate in common form is voidable only by requiring proof in solemn form within the time required by statute; otherwise probate in common form is conclusive of matters relating to validity of the will.	The Court cited Davis for the clear principle that if the statutory time to demand proof in solemn form expires without action, the probate in common form is conclusive as to the will's validity.

Court's Reasoning and Analysis

The Court's analysis is focused and statutory: it begins from the undisputed procedural facts that the will was admitted to probate in common form on March 8, 1957, and that the appellant's petition to require proof in solemn form was not filed until January 27, 1958 — a period exceeding six months. The Probate Judge dismissed the petition pursuant to Section 19-255, Code of Laws of South Carolina, 1952, as amended, which the Court treats as the governing statute setting the time limit in which an interested person may require proof in solemn form.

The Court reviewed controlling South Carolina authority interpreting the effect of probate in common form and the statutory time limits. It relied on Wilkinson v. Wilkinson to reject the notion that other disabilities or exceptions beyond those the Legislature specified (notably infancy) should be read into the statute. The Court quoted Wilkinson's explanation that the Legislature, in subsequent amendments, intended to limit exceptions to infancy rather than to leave open judicially created exceptions. The Court also cited Davis v. Davis for the proposition that probate in common form is voidable only by requiring proof in solemn form within the statutory time and that, absent timely action, such probate becomes conclusive as to the will's validity.

The Court noted that the legislative scheme has been amended over time to shorten the period for demanding proof in solemn form (first to one year and later to six months) and that infancy remains the only legislative exception. Based on these authorities and the undisputed lapse of more than six months between probate and the filing of the petition, the Court concluded that the petition was barred by the statute and that the Probate and Circuit Courts acted properly in dismissing it.

Holding and Implications

Holding: The Court affirmed the order dismissing the appellant's petition because it was filed more than six months after the will had been admitted to probate in common form; accordingly, the petition was barred under the applicable statute. The judgment of the lower court is affirmed.

Implications: The direct effect is that the probate in common form remains conclusive as to the validity of the will in this case and the appellant's attempt to have the will proven in solemn form was foreclosed by the statutory six-month period. The opinion emphasizes that the statutory time limit (as amended) and the Legislature's restriction of exceptions (infancy being the only exception recognized by statute) govern the ability of interested parties to challenge a probate in common form. The opinion does not purport to establish a novel precedent beyond applying existing South Carolina decisions and the statute to the facts here.

Disposition: Affirmed. (STUKES, C.J., and OXNER, LEGGE and MOSS, JJ., concur.)

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Henry WOOTEN, Appellant, v. Sallie WOOTEN, Executrix, Respondent.

November 6, 1959.

TAYLOR, Justice.

This appeal is from an Order of the Court of Common Pleas of Hampton County affirming an Order of the Probate Court of said County dismissing the petition of Appellant for the reason that it was not presented to the Court until more than six months had expired after the will in question had been admitted to probate in common form.

The will in question was admitted to probate in common form on March 8, 1957; and on January 27, 1958, petitioner filed his petition with the Probate Court seeking to have the will proven in solemn form and setting forth his reasons therefor. After service of said petition and the citation of the Probate Court, Respondent moved to dismiss the petition on the ground that it was not filed within the time specified under Section 19-255, Code of Laws of South Carolina, 1952, as amended. This motion was granted and the petition was dismissed by the Probate Judge. Upon appeal to the Circuit Court, the matter came on for hearing before the Honorable James M. Brailsford, Jr., at which time petitioner alleged that the three witnesses were not all present together when the will was executed, that the deceased at the making of the will was under undue and fraudulent influences, and that the will is in violation of a prior contract to make a will in favor of petitioner and proposed to call witnesses to testify. Whereupon Respondent agreed and stipulated that for the purpose of this appeal only that if the witnesses to the will were present and allowed to testify, they would testify that they were not all present together and in the presence of each other at the time the testator signed the will but moved to dismiss the petition in that more than six months had lapsed since said will had been probated in common form.

In Wilkinson v. Wilkinson, 178 S.C. 194, 182 S.E. 640, 642, an action was commenced in the Court of Common Pleas; and this Court held that no collateral attack could be made in the Court of Common Pleas from a judgment of the Probate Court admitting a will to probate in common form and used the following language:

"Appellant takes the position that while infancy is the only disability made an exception to the four-year period by the act of 1839, now section 8932 of the Civil Code, nevertheless, the Legislature meant by that enactment that other exceptions and legal disabilities should be read into and included within the meaning of the act. In this, we cannot agree. This act was passed seven years after the decision in the case of Kinard v. Riddlehoover, 3 Rich. 258, in which the court held that parties in interest should have four years in which to require proof of will in solemn form after the granting of probate in common form unless the parties in interest, or some of them, should be laboring under some legal disability to sue, and in such cases within four years next after the removal of such disability. With this decision before it, the Legislature restricted the disabilities to the one disability of infancy. No doubt, if the Legislature had intended to include any other legal disability or exception, it would have said so."

This Court further stated in Davis v. Davis, 214 S.C. 247, 52 S.E.2d 192, 198:

"* * * In the light of the statutory procedure for the probate of wills, the probate of a will in common form by the Probate Court is voidable only by requiring proof of the will in solemn or due form of law within the time required by statute, otherwise the probate in common form shall be conclusive of all matters relating to the validity of the will, * * *."

Since the decision in the Wilkinson case, the statute has been amended several times. The time for demanding proof of will in solemn form was first reduced to one year and later to six months with infancy being the only exception.

There can be no question but that the Legislature has the power to set the time in which the validity of a will may be challenged and has exercised this power by amending the former statutes and providing that "Probate in common form shall be good unless some person interested to invalidate any such paper as a will shall give notice to the judge of probate within six months next after such probate * * *"

More than six months having lapsed between the date of probate and the filing of the petition, the Order must be affirmed; and it is so ordered. Affirmed.

STUKES, C.J., and OXNER, LEGGE and MOSS, JJ., concur.

WOOTEN v. WOOTEN