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Docket Number

16186

Attorney(S)

Mr. M.L. Meadors, of Florence, for Appellants, cites: As to authority vested in Courts of Probate: 132 S.C. 45, 128 S.E. 40; 57 Am. Jur. 634. As to the power of Courts of Probate to admit lost or destroyed wills to probate: 13 Rich. 66; 57 Am. Jur. 634, 636, 637, 640; 2 Rich. 184; 22 S.C. 187; 191 S.E. 59; 65 U.S. 553, 16 L.Ed. 770; Jarman On the Probate of Wills, 1 Vol. Perkins' Edition, p. 223; 34 A.L.R. 1300; 16 L.Ed. 770; 57 Am. Rep. 646. As to where the animo revocandi is doubtful, the party that alleges it must prove it: 3 McCord 282. As to the presumption against the descent of property by intestacy: 26 S.E.2d 395, 203 S.C. 137; 2 Hill Eq. 304, 11 S.C. Eq. 304; 109 S.C. 477, 96 S.E. 608; 118 S.C. 510, 111 S.E. 793; 20 S.E.2d 623. As to the doctrine of resulting trusts: 54 Am.Jur. 152, 160; 26 Am. Jur. 730, 731; 1 Strob. Eq. 103, 47 Am. Dec. 527; 21 S.C. 392; 56 S.C. 193, 34 S.E. 249, 46 A.L.R. 525; 25 S.C. 309; 104 S.C. 1, 88 S.E. 300; 112 S.C. 519, 100 S.E. 161; 134 S.E. 859; 194 S.E. 653; 196 S.E. 369. As to the contract to make a will being enforceable: 146 S.C. 59, 143 S.E. 552, 59 A.L.R. 1297; 189 S.C. 269, 1 S.E.2d 139. Messrs. Lee Shuler, of Kingstree, and Emerson L. Ard, of Hemingway, for Respondents, cite: As to the respondents not being bound by ex parte probate Court proceedings and having the right to bring the instant action in partition: 132 S.C. 45, 128 S.E. 40; 174 S.C. 161, 176 S.E. 728. As to the requirements in proving a lost or destroyed will: 207 S.C. 442, 36 S.E.2d 293. As to there being no valid will of alleged testator in force and effect at the time of his death: 34 A.L.R. 1304; 207 S.C. 442, 36 S.E.2d 293; (N.C.) 40 S.E. 689; 68 C.J. 798. As to the doctrine of conditional revocation: 28 R.C.L. 182, 183; 200 S.C. 96, 20 S.E.2d 623; 2 Brev. 279, 3 Am. Dec. 713. As to there being no resulting trust in the instant case: 187 S.C. 36, 196 S.E. 369; (Ga.) 9 S.E.2d 768; 113 A.L.R. 339. As to requirement that a contract to make a will must be definite and certain and established by evidence clear and convincing: 107 S.C. 233, 92 S.E. 465; 131 S.C. 416, 127 S.E. 719; 73 S.C. 155, 53 S.E. 79.

Judges

BAKER, Chief Justice.

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Smart Summary

Summary of Opinion: James B. Davis Estate — Decision of Feb. 18, 1949 (BAKER, C.J.)

Factual and Procedural Background

James B. Davis, a long-time resident of Williamsburg County, S.C., suffered a disabling stroke in May or June 1942. Later in 1942, while living in the Midway section of Williamsburg County, he executed a last will and testament in the office of Magistrate J.M. Spivey. The will left a small bequest ($5 or $10) to his brother London D. Davis and the balance of his estate to his widow Catherine Davis for life, with remainder to Lillian Davis (described as an adopted daughter) and Roosevelt Burgess. William Donnely was named executor.

After execution the will was initially kept in Davis's pocket; subsequently he placed it between the mattress and springs of the bed he shared with his wife. Late in May 1943 (approximate date), the Davis home and its entire contents, including the will and other papers, were destroyed by fire. James B. Davis died on September 9, 1943.

On October 15, 1943, Catherine Davis filed a verified petition in the Probate Court to prove the lost/destroyed will in common form, supported by an affidavit of J.M. Spivey attesting to preparation and execution of the instrument in late 1942. Although no separate formal order admitting the will to probate appears in the record, letters testamentary were issued on November 5, 1943, to William Donnely and recited that on that date the will had been "proved, approved and allowed."

On November 30, 1944, London D. Davis and Margaret Davis commenced a partition action concerning approximately 148 acres of land formerly belonging to James B. Davis. The complaint named Catherine Davis and other relatives as defendants. The defendants (who claimed under the will) answered and relied upon the will as defense to the partition claim.

A special referee found that the will had been admitted to probate and recommended dismissal of the partition action. The Circuit Judge, on exceptions to the referee's report, held that proponents of the will had failed to meet the requirements for proof of a lost will and alternatively concluded that, if the will had been established, the testator adopted the destruction of the will animo revocandi (with intent to revoke). The devisees under the will (Catherine Davis, Lillian Davis and Roosevelt Burgess) appealed from the Circuit Judge's decree. The Supreme Court reversed and remanded with instructions to dismiss the action.

Legal Issues Presented

Whether the Probate Court for Williamsburg County properly admitted the destroyed will of James B. Davis to probate in common form (and whether the issuance of letters testamentary reciting that the will was proved was sufficient to show such admission).
Whether the admission of the will to probate in common form can be attacked in the Court of Common Pleas in the present partition action where no person interested required proof in due form of law within the statutory period.
Whether, on the record, the destroyed will was accidentally destroyed and, if so, whether the testator adopted the accidental destruction as animo revocandi (i.e., whether there was sufficient evidence of intent to revoke).

Arguments of the Parties

Appellants (devisees under the will: Catherine Davis, Lillian Davis, Roosevelt Burgess)

Maintained that the Probate Court had authority to admit a lost or destroyed will to probate in common form and that the November 5, 1943 issuance of letters testamentary (reciting that the will was proved, approved and allowed) established that the will had been admitted to probate.
Asserted that once admitted to probate in common form, the probate was conclusive as to formalities of execution and capacity, and could not be collaterally attacked in the Court of Common Pleas where no timely statutory challenge requesting proof in due form had been made.
Contended that the evidence shows the will was accidentally destroyed in the house fire and that there is insufficient proof that the testator adopted the destruction as an intentional revocation.

Respondents (plaintiffs in partition: London D. Davis and another)

Contended that the proponents of the will had failed to satisfy the requirements for proving a lost or destroyed will.
Argued that the Probate Court's proceedings admitting the will were infirm and thus subject to attack in the Court of Common Pleas; the Circuit Judge relied on authorities asserting that an infirmity appearing on the face of the probate record could render the probate void.
Relied on evidence (including testimony of the widow and a conversation with attorney Emerson L. Ard) to argue that James B. Davis, after learning his will had been destroyed, spoke of making another will and thereby manifested an intent inconsistent with the previously executed instrument (arguing effectively that the testator adopted the destruction as a revocation).

Table of Precedents Cited

This table lists the case citations and the rule or principle each was cited for in the opinion or in counsel's cited authorities as shown in the record. Where the opinion itself applies a precedent, the "Application by the Court" column records how the Court used it; where a citation was presented by counsel but not specifically applied in the Court's analysis, that is indicated.

Precedent	Rule or Principle Cited For	Application by the Court
Lowe v. Fickling, 207 S.C. 442, 36 S.E.2d 293	Presumptions arising when a testator takes possession of his will and it cannot be found after death; burden of proof concerning destruction and revocation.	The Court relied on this case to describe the presumption that a missing will was destroyed animo revocandi (and that such presumption is rebuttable), and to explain the proponents' burden to show non-revocation or accidental destruction.
Ward v. Glenn, 9 Rich. Law 127	Effect of probate in common form — probate in common form is the act of a court of competent jurisdiction and cannot be called in question in another court; probate is res judicata as to matters before the probate court.	Quoted and used to support the proposition that probate in common form by the Probate Court is conclusive and cannot be impeached in another court except by the statutory appeal procedure.
Noell v. Wells, 1 Lev. 235	Authority cited in Ward v. Glenn regarding limits on proof that contradicts the probate record (quoted within Ward).	Included within the Ward quotation showing historical recognition that probate cannot be traversed by proof contradicting the ordinary's record; used as supporting excerpt in Ward quotation.
Hembree v. Bolton, 132 S.C. 136, 128 S.E. 841	Effect of admission of a will to probate in common form: settles formalities of execution and capacity; probate in common form is conclusive until challenged by requiring proof in due form.	The Court cited this case to support that probate in common form settles formalities and capacity and that such probate is conclusive unless timely challenged by requiring proof in due form of law.
Burkett v. Whittemore, 36 S.C. 428, 15 S.E. 616	Support for the proposition that probate in common form has conclusiveness as to execution formalities (cited alongside other decisions).	Cited by the Court as authority supportive of the rule that probate in common form is conclusive of matters properly before the Probate Court.
Prater v. Whittle, 16 S.C. 40	Authority on probate and matters concerning validity of wills admitted in probate.	Referenced by the Court as part of the body of authority confirming the conclusiveness of probate in common form.
Wilkinson v. Wilkinson, 178 S.C. 194, 182 S.E. 640	Another decision cited on the scope and effect of probate adjudications.	Cited by the Court in support of its discussion of the conclusiveness of probate in common form.
Scott v. Newell, 146 S.C. 385, 144 S.E. 82	Cases cited by the lower court for the proposition that a probate judgment may be void where infirmity appears on the face of the record.	The Supreme Court noted these cases were relied upon by the lower court but held it was unnecessary to decide whether the probate was void on the record because it concluded the probate was valid and not vulnerable to the attack made in this cause.
Finley v. Robertson, 17 S.C. 435	Cited by the lower court for the proposition that probate judgments may be void if infirmities appear on the face of the record.	Not specifically applied by this Court; listed as one of the authorities cited by the lower court in support of its conclusion.
Hood v. Cannon, 178 S.C. 94, 182 S.E. 306	Cited by the lower court regarding the attackability of probate decrees appearing infirm on their face.	Referenced as among the authorities the lower court relied on; the Supreme Court did not find it necessary to determine the lower court's reliance on these cases because it concluded the probate was valid.
132 S.C. 45, 128 S.E. 40	Cited by counsel "as to authority vested in Courts of Probate."	Cited by counsel in briefs; the opinion does not separately analyze this specific citation by name.
57 Am. Jur. 634	Text of American Jurisprudence cited by counsel on courts of probate and proof of lost/destroyed wills.	Cited by counsel; the Court quoted other secondary authority (68 C.J., 57 Am. Jur.) in its discussion but did not treat this citation as a controlling case.
13 Rich. 66	Cited by counsel re power of Courts of Probate to admit lost or destroyed wills to probate.	Included in counsel's list of authorities; not separately analyzed by the Court in the opinion's text beyond the general discussion of probate jurisdiction.
2 Rich. 184	Cited by counsel on power of Court of Probate to admit destroyed wills.	Cited by counsel; not explicitly applied in the opinion's reasoning beyond the Court's general recognition of probate power.
22 S.C. 187	Cited by counsel regarding probate and lost wills.	Cited by counsel; the Court did not separately discuss this authority.
191 S.E. 59	Cited by counsel in list of authorities on probate matters (specific case not named in text).	Cited by counsel; not separately discussed by the Court.
65 U.S. 553, 16 L.Ed. 770	Cited by counsel regarding power to admit lost or destroyed wills (federal/report citation in counsel's list).	Cited by counsel; the Court did not expressly rely upon or analyze this authority in its opinion.
3 McCord 282	Cited by counsel "where the animo revocandi is doubtful, the party that alleges it must prove it."	Counsel's authority asserting burden on party alleging revocation; the Court adopted the principle that the party alleging revocation must prove it.
26 S.E.2d 395, 203 S.C. 137	Cited by counsel as to presumption against descent by intestacy (listed among authorities).	Cited by counsel in briefs; not specifically applied in the Court's central analysis of probate and revocation questions.
2 Hill Eq. 304; 11 S.C. Eq. 304	Cited by counsel in connection with intestacy presumptions and trusts.	Listed by counsel; not specifically applied in the opinion.
109 S.C. 477, 96 S.E. 608	Cited by counsel among authorities on intestacy presumptions.	Cited by counsel; Court did not rest its decision on this particular citation.
118 S.C. 510, 111 S.E. 793	Cited by counsel in partition/trust context.	Counsel citation; not specifically analyzed in the opinion.
20 S.E.2d 623	Cited by counsel (and later by respondents' counsel) regarding conditional revocation and related topics.	Cited in the briefs and in the respondents' list of authorities; the Court did not hinge its ruling on this single citation.
21 S.C. 392	Cited by counsel on resulting trusts doctrine.	Cited by counsel; not specifically applied in the Court's analysis focused on probate/admissibility and revocation.
56 S.C. 193, 34 S.E. 249	Cited by counsel concerning resulting trusts.	Cited by counsel; the Court did not specifically rely on this case in its primary holdings.
25 S.C. 309	Cited by counsel on resulting trusts.	Counsel citation; not specifically applied in the opinion.
104 S.C. 1, 88 S.E. 300	Cited by counsel on resulting trusts and related principles.	Listed by counsel; not specifically discussed by the Court.
112 S.C. 519, 100 S.E. 161	Cited by counsel (resulting trusts/related).	Cited in counsel's brief list; not singled out in the Court's written analysis.
134 S.E. 859	Cited by counsel in list of authorities (context not spelled out in the opinion).	Cited by counsel only.
194 S.E. 653	Cited by counsel regarding resulting trusts or related doctrines.	Cited by counsel; not specifically applied in the Court's reasoning.
196 S.E. 369	Cited by counsel on resulting trusts and related principles; also appears elsewhere in counsel's list.	Included among counsel's authorities; not specifically decisive in the Court's ruling.
146 S.C. 59, 143 S.E. 552	Cited by counsel "As to the contract to make a will being enforceable."	Cited by counsel as authority for contract-to-make-a-will principles; not central to the Court's ultimate ruling in this opinion.
189 S.C. 269, 1 S.E.2d 139	Cited by counsel on the enforceability of agreements to make wills.	Counsel citation; not essential to the Court's disposition in this matter.
174 S.C. 161, 176 S.E. 728	Cited by respondents' counsel concerning rights to bring partition notwithstanding ex parte probate proceedings.	Cited by counsel; the Court's holding that probate in common form precludes collateral attack absent timely challenge addressed the same statutory scheme, though it did not rely solely on this citation.
40 S.E. 689 (N.C.)	Cited by respondents' counsel in connection with requirements for proving a lost or destroyed will.	Presented by counsel; the Court considered South Carolina authorities primarily in its analysis.
187 S.C. 36, 196 S.E. 369	Cited by respondents' counsel regarding lack of resulting trust in a given circumstance.	Counsel citation; the Court did not decide the resulting trust question in its disposition because it found probate conclusive.
9 S.E.2d 768 (Ga.)	Cited by respondents' counsel in connection with resulting trust authorities.	Cited by counsel; not directly applied by the Court.
131 S.C. 416, 127 S.E. 719	Cited by respondents' counsel for the requirement that a contract to make a will be definite and established by clear and convincing evidence.	Cited by counsel; Court observed applicable burden-of-proof principles in the will/probate context but did not base its ruling on this single case.
73 S.C. 155, 53 S.E. 79	Cited by respondents' counsel on contract-to-make-a-will standards.	Counsel citation; not determinative in the Court's analysis.
Burkett, Prater, and other early S.C. cases (as cited above)	Historical South Carolina authorities cited regarding probate and effect of probate adjudication.	Used by the Court collectively to show established state law that probate in common form is conclusive of matters before the Probate Court.

Court's Reasoning and Analysis

The Court's analysis proceeded in the following steps, adhering closely to the statutory framework and prior authorities as presented in the record:

Jurisdiction. The Court first observed that the Probate Court has only such jurisdiction as the General Assembly vests but that the Court of Common Pleas has concurrent jurisdiction in many probate matters. Sections of the 1942 Code (notably §8930 and §8932) require that wills be proved before the Probate Judge where the testator resided and authorize the Probate Judge to admit a paper to probate in common form if the proof satisfies him that the paper is the last will and testament.
Effect of Letters Testamentary. Although no separate formal order admitting the will to probate was in the transcript, the letters testamentary issued November 5, 1943, recited that the will had been "proved, approved and allowed." The Court held that this recital was sufficient to conclude that the Probate Court had admitted the destroyed will to probate in common form on that date.
Presumptions and Burden of Proof. The Court relied on its earlier decision in Lowe v. Fickling for the governing presumptions where a testator possessed a will that cannot be found after death: the law presumes destruction animo revocandi, but that is only a rebuttable presumption. The burden to show non-revocation or accidental destruction rests on the proponents of the will (i.e., those offering proof that the deceased executed the will and that it was not revoked).
Statutory Procedure for Challenging Probate. Under Section 8932, probate in common form is good unless a person interested gives notice within one year after such probate that the will be proved in due form of law. If due form proof is received and is insufficient the Probate Court may pronounce invalidity; from that decree an appeal to the Court of Common Pleas lies and the issue is tried de novo. Because no one required proof in due form within the statutory time here, the probate in common form must stand.
Res judicata / Conclusiveness of Probate. Drawing on Ward v. Glenn and Hembree v. Bolton (and other authorities), the Court emphasized that probate in common form is a judicial in rem proceeding, binding on persons with interest and conclusive of matters properly before the Probate Court (such as formalities of execution and testamentary capacity). After the statutory period for challenging the probate has lapsed or where no timely challenge is brought, the probate cannot be collaterally attacked in another court.
Assessment of Evidence on Revocation and Execution. Because the Court concluded the probate could not be attacked in this cause, it stated that it was unnecessary to decide whether Davis made a valid will and did not revoke it, but analyzed the evidence anyway. The scrivener (J.M. Spivey) testified and had made an affidavit that the will was prepared and duly executed with three subscribing witnesses. The Court found the evidence sufficient to conclude that the will was properly executed. The destruction by fire was clearly shown to be accidental. The evidence relied upon to prove adoption/ratification of the destruction (testimony that Davis talked about making another will and the Ard conversation) was found insufficient to establish by clear evidence that Davis intended to adopt the accidental destruction as his own act of revocation. The Court emphasized authorities stating that mere silence, failure to make a new will, or knowledge of accidental destruction is not alone enough to prove ratification of a revocation; clear evidence is required.
Conclusion. Because the Probate Court had jurisdiction and actually admitted the destroyed will to probate in common form (as shown by the letters testamentary), and because no timely statutory challenge was made in the Probate Court, the probate was conclusive and could not be attacked in the present partition action. On the merits the Court also found that the will was properly executed, was accidentally destroyed in the fire, and was not shown by clear evidence to have been adopted as revoked by the testator.

Holding and Implications

Holding: The Supreme Court reversed the decree of the Circuit Judge and remanded the cause to the Court of Common Pleas for Williamsburg County with instructions to dismiss the partition action. In the Court's words, the probate in common form could not be attacked in this cause and, on the evidence, the will had been properly executed, accidentally destroyed by fire, and had not been shown to have been revoked by the testator's adoption of the destruction.

Implications:

Direct effect on the parties: The will stands as admitted to probate in common form, the devisees under the will (Catherine Davis, Lillian Davis and Roosevelt Burgess) prevail in their appeal, and the partition action initiated by London D. Davis and another was ordered dismissed by instruction of the Supreme Court.
Procedural consequence: The decision emphasizes that a probate in common form, when not timely challenged by requiring proof in due form of law within the statutory period, is conclusive and not subject to collateral attack in another court;
On legal precedent: The opinion applies and reiterates established principles from prior South Carolina decisions (e.g., Lowe v. Fickling; Ward v. Glenn; Hembree v. Bolton) and does not announce a novel rule; it enforces the statutory scheme for probate contests and clarifies the application of the presumption regarding lost wills and the burden to rebut it.

Concurred: FISHBURNE, STUKES, TAYLOR and OXNER, JJ.

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DAVIS ET AL. v. DAVIS ET AL.

February 18, 1949.

BAKER, Chief Justice.

James B. Davis, who was a resident of Williamsburg County, South Carolina, for many years, and who lived in the Midway Section of that County in the year 1942, suffered what is termed in the record a stroke during the month of May or June of that year, the exact nature and extent of which is not shown in the record. Although Davis was not confined to bed from the time he suffered this stroke to the time of his death, the evidence shows that he was not fully able to transact his business affairs without considerable help from others. Davis was a farmer and the lower Court found that as a result of the stroke he "became practically physically incapacitated." During the same year that Davis suffered the stroke, he went to the office of Mr. J.M. Spivey, a Magistrate in Hemingway, South Carolina, and there executed a last will and testament. The exact dates are difficult to determine from the record, but it appears that he executed the will subsequent to suffering the stroke.

Under the terms of the will executed by Davis in the office of Magistrate Spivey (and so far as the record discloses this was the only will ever made by Davis), he left to his brother, London D. Davis, the sum of $5 or $10, and the entire balance of his estate to his widow, Catherine Davis, for and during her lifetime, with the provision that it should be divided after her death between Lillian Davis, described as his adopted daughter, and Roosevelt Burgess, a brother-in-law. William Donnely was named Executor of the will. Davis at the time of his death left an estate which consisted principally of about one hundred fifty acres of farm land in Williamsburg County.

After the will was executed Davis at first kept it in his pocket, but about three weeks before his home and its entire contents were completely destroyed by fire, he put the will between the mattress and springs of the bed in which he and his wife slept. The exact date when his home burned is not clear, but the nearest date fixed in the record is the last part of the month of May in the year 1943. The will and other papers of Davis, including deeds to property, were destroyed by the fire, as were all of the other contents of the home, as aforesaid.

On either July 5 or July 6, 1943, Davis in company with his brother, London D. Davis, went to see Emerson L. Ard, Esq., an attorney in Hemingway, South Carolina, for the purpose of purchasing one of Mr. Ard's discarded suits of clothes. While talking to Mr. Ard, Davis told him about his home burning down and about losing everything that he had in the home, and inquired of Mr. Ard how he could get deeds for the ones which were destroyed in the fire. Mr. Ard informed him how to replace the deeds with certified copies from the Clerk of Court. Davis then asked Mr. Ard what would happen if a will were destroyed and we quote from the testimony of Mr. Ard the information he gave to Davis: "I said if a will is destroyed it is just destroyed." Davis then asked Mr. Ard what happened to the property of one who does not have a will and we quote further from the testimony of Mr. Ard the information Davis received from him: "I said under the statute of distribution the property is divided. He did not tell me that he had a will and I did not know that he had a will. I told him what the statute of distribution was and I think he went on over to Mr. Spivey's office about the same time with London." On September 9, 1943, James B. Davis died suddenly while sitting in a chair. On October 15, 1943, his widow, Catherine Davis, filed in the Probate Court for Williamsburg County a petition to prove the will executed by Davis in 1942 in common form of law. This petition, which is duly verified, sets forth substantially the facts above outlined with reference to the execution of the will, its contents and its destruction, and is supported by an affidavit of Mr. J.M. Spivey that during the latter part of 1942 he prepared a will for James B. Davis at his instance and request, that the same was duly executed by James B. Davis as his last will and testament as provided by law, and that the contents of the will were as outlined above, except no mention is made of the bequest of $5 or $10 to London D. Davis. There appears to be no formal order of the Probate Court admitting the will to probate in common form or otherwise, but on November 5, 1943, letters testamentary were issued to William Donnely, "named Executor in the last will and testament of James Davis," and which letters testamentary further recited "that on the 5th day of November which was in the year of our Lord one thousand nine hundred forty-three, the last will and testament of James Davis, late of Williamsburg County, in this State, deceased, was proved, approved and allowed of."

This suit was commenced on November 30, 1944, for the partition of the lands of which James B. Davis died seized and possessed, namely, a tract of one hundred forty-eight acres situate in Williamsburg County. The suit is by London D. Davis, the legatee named in the above will, a brother of the deceased, and Margaret Davis, the widow of another brother, Ben Davis, who survived the deceasel but died intestate before suit was brought, against the widow of the deceased, Catherine Davis, and Rosena Davis, James B. Davis, Manda Davis and Violet Davis, children of the deceased brother, Ben Davis. Lillian Davis and Roosevelt Burgess are made parties on the allegation that they claim some interest in the property. The widow, with Lillian Davis and Roosevelt Burgess, answered the complaint and among other defenses set up ownership of the lands in question under the will above referred to. The other defenses set up by these defendants will not be considered because under the view we have taken of the case they would not change the result.

The special referee to whom the cause was referred and before whom the testimony was taken, decided that the will of James B. Davis had been admitted to probate and that the judgment of the Probate Court could not be attacked in this proceeding and therefore recommended that the complaint be dismissed. The Circuit Judge who heard exceptions to the report of the referee decided that the proponents of the will of James B. Davis had failed to meet the requirements for proof of such a will, and that if such a will had been established, then James B. Davis, the testator, clearly adopted the burning or destruction of the will animo revocandi. From this decision the devisees under the will, Catherine Davis, Lillian Davis and Roosevelt Burgess, have appealed to this Court by twenty-eight exceptions. It seems to us that if it is determined that James B. Davis did make a valid will in 1942 and did not prior to his death revoke such will, or that the will was duly admitted to probate by the Probate Court and it was not required to be proved in due form of law, then all other issues in this case become moot questions.

The Court of Probate in South Carolina has only such jurisdiction as is vested in it by the General Assembly, but limited by Section 19 of Article 5 of the State Constitution of 1895. In such matters as the Probate Court may be granted jurisdiction, it is no longer subject to doubt but that the Court of Common Pleas has concurrent jurisdiction on such matters with the Court of Probate. Needless to say that among the several matters to which the Probate Court has been granted jurisdiction are matters testamentary. By Section 8930 of the 1942 Code of Laws of South Carolina it is provided that wills shall be proved before the Probate Judge of the County where the testator resided. By Section 8932 of said Code, the Judge of Probate is authorized to receive proof of wills in common form and "if such proof shall satisfy the judge of probate that the paper is the last will and testament of the deceased he shall admit it to probate in common form." In the instant case evidence of the lost will of James B. Davis was presented to the Probate Court for Williamsburg County for probate, and although there is as above stated no separate order admitting such will to probate, the Probate Court in writing did on November 5, 1943, issue letters testamentary under such will to the named executor therein, to wit, William Donnely, and recited in such order of letters testamentary that on the same day the said last will and testament of James Davis, deceased, was proved, approved and allowed. In our opinion this recitation in the order for letters testamentary is sufficient to conclude that on November 5, 1943, the destroyed will of James B. Davis was duly admitted to probate in common form by the Probate Court for Williamsburg County.

In the case of Lowe v. Fickling, 207 S.C. 442, 36 S.E.2d 293, we set forth the presumptions arising when a testator takes possession of his will and the same cannot be found after his death, and we also set forth the burden of proof in connection with the establishment of certain facts with reference thereto. What we said there is applicable to the instant case. Under such circumstances the law presumes that the testator destroyed the will animo revocandi, but this is merely a presumption of fact and may be rebutted by evidence to the contrary. The burden of proof rests upon the proponents of the will to further establish facts which show that the maker of the will either did not destroy the will for the purpose of revoking the same, or that the will was destroyed by accidental means. When evidence of the destroyed will of James B. Davis was offered for probate to the Judge of Probate for Williamsburg County, all of the above considerations were for judicial determination by that Court, and if the proof submitted satisfied the Judge of Probate that James B. Davis executed the will in question in the manner provided by law, and that the will was not revoked by James B. Davis in any of the ways set forth in Section 8921 of the 1942 Code of Laws of South Carolina, or that its destruction was purely accidental, it was proper for that Court to admit the will to probate in common form under Section 8932 of the 1942 Code. As stated above it is our opinion that the Probate Court, which very properly had jurisdiction, did upon the proof offered admit said will to probate on November 5, 1943, and we must therefore presume that in doing so it was satisfied with the proof offered.

The concurrent jurisdiction of the Court of Common Pleas with the jurisdiction of the Court of Probate does not extend the jurisdiction of the Court of Common Pleas to re-hear and determine matters in which the Probate Court has already assumed jurisdiction and acted thereon, except by appeal from such Court as provided for under the statutes and then only within the time therein prescribed. In the case of the probate of wills under Section 8932 of the 1942 Code, the admission of a will to probate in common form by the Probate Court is declared good unless some person or persons interested to invalidate the same as a will shall give notice to the Judge of Probate, within one year next after such probate in common form is allowed, that he or she or they require the will to be proved in due form of law. In case any party interested be subject to the disability of infancy, then the notice for proof of the will in due form of law may be given within one year next after such disability is removed. Upon receiving proof of the will in due form of law, the Probate Court shall then, if the proof be sufficient, pronounce by its decree the validity of the will, or if it be insufficient, pronounce its invalidity. From this decree an appeal may be taken to the Court of Common Pleas and in the trial in the Court of Common Pleas upon such appeal, the issue of "will," or "no will" shall be tried de novo.

In the instant case the will in question was admitted to probate in common form by the Probate Court on November 5, 1943, and no effort in the Probate Court has been made to require the will to be proved in solemn or due form of law, and therefore the will must stand. Had suit been brought in the Court of Common Pleas to establish the lost will of James B. Davis prior to any action in the Court of Probate, the Court of Common Pleas could then have determined the issue of will or no will in the first instance.

In the case of Ward v. Glenn, 9 Rich. Law 127, this Court said:

"The ordinary having granted probate of this will in common form, and four years having elapsed — the time within which by the 11th Sec. of the Act of 1839 ( 11 Stat. 41) it may have been proved per testes or in due form of law — we cannot now call in question its legal validity or formal execution. It is the act of a court having jurisdiction over the subject matter. When the will was propounded it was competent for the ordinary to have inquired if Lucy Ivey possessed testamentary capacity; but the grant of probate, without appeal, admits her capacity and we cannot consider that question while the probate is unrevoked.

"It is not necessary to inquire whether the ordinary may revoke his probate granted more than four years before an application is made for that purpose. This is not an appeal from his sentence touching the proof of the will; but from his decree refusing administration on the ground, that the validity of the will and the grant of probate are res judicata. His probate cannot be impeached in any other court, and the admission of evidence to prove the want of testamentary capacity would be directly against the record. In Noell v. Wells, 1 Lev. 235, the defendant was not allowed to prove that the will was forged, because it was said to be against the seal of the ordinary in a matter proper for his jurisdiction. `Evidence may be given that the seal was forged, because that confesses and avoids it; but not that another was executor, or that the testator was non compos mentis, for these falsify the proceedings of the ordinary in cases of which he is judge.' The probate, says Swinburn, is not traversable but the effect of it may be traversed, as that the testator did not make him executor who claims by the probate. Swinb. 450."

In the case of Hembree v. Bolton, 132 S.C. 136, 128 S.E. 841, this Court considered the effect of the admission of a will to probate in common form by the Court of Probate, and from both the majority opinion and the dissenting opinion it is there well established that the probate of a will in common form by the Probate Court settles all questions as to the formalities of its execution and the capacity of the testator, and we might add the validity of the will to the extent that the deceased died testate, but such probate does not affect the validity or invalidity of any particular clause or settle any question of construction. The probate in common form until challenged by requiring its proof in due form, also establishes that there was no complete revocation of the will although it is intimated that a revocation which does not wholly defeat the will is not a question presented for the Probate Court to determine in the admission of the will to probate. See also Burkett v. Whittemore, 36 S.C. 428, 15 S.E. 616; Prater v. Whittle, 16 S.C. 40, and Wilkinson v. Wilkinson, 178 S.C. 194, 182 S.E. 640.

As stated in 68 C.J. p. 874, the probate of a will is in nature a proceeding in rem, wherein all persons having any interest are deemed parties and concluded by the decision therein. Our conclusion in this case is further confirmed by the following citation from 68 C.J. pp. 1228, 1229: "Conclusiveness of Proceedings — (a) In General. As a proceeding to probate a will is a judicial one, a judgment or decree admitting a will to probate stands on the same footing as a judgment of any other court of competent jurisdiction; and, while it is not conclusive in the sense that a person having the requisite interest may not attack it by a direct proceeding within the period of time allowed by statute, without a statute conferring the right to contest, the order admitting the will to probate would be final on all parties. So, after the lapse of time allowed to have it set aside or annulled, or within that period and before action is taken, it stands as an adjudication that the instrument probated is the last will and testament of deceased, and it is conclusive of all matters properly before the court for determination. This conclusiveness attaches, even though the judgment or decree is general in its terms, or though the record is in some respects incomplete; * * *"

The lower Court concluded that there was no warrant for the proof of a lost or destroyed will in the Probate Court. With this view we cannot concur. By Section 19 of Article 5 of the Constitution it is provided that the Court of Probate shall be vested with jurisdiction in all matters testamentary to the extent provided by the General Assembly. Section 8930 of the Code provides that wills shall be proved before the Judge of Probate of the County where the testator resided. It is true that under Section 8932 of the Code, which sets forth how wills shall be proved before the Court of Probate, it is stated that when a paper is offered before a Judge of Probate as the last will and testament of a person deceased the Judge of Probate may admit it to probate in either of two forms, namely, "common form" and "due form of law." The right of a Court of Probate to admit a lost or destroyed will is as completely vested in the Judge of Probate of the County where the testator resided by Section 8930 as if said Section specifically stated that lost or destroyed wills should be proven before him, and in the light of this construction of Section 8930 the use of the words "when a paper is offered" in Section 8932 would not limit his right only to existing wills, and in our opinion Section 8932 should and does govern the procedure for the proof of lost or destroyed wills as well as wills in existence. This being so, then it was proper for the Probate Judge of Williamsburg County under Section 8932 to admit the destroyed will of James B. Davis to probate in common form upon such proof as satisfied him that James B. Davis executed during his lifetime a last will and testament as provided by law, that such will was not revoked by him in any of the ways provided for by Section 8921 of the Code, that the will was accidentally destroyed, and that its contents were sufficiently known and proven.

The lower Court in reaching the conclusion that it did, held that the judgment of the probate Court in admitting the destroyed will to probate was void and not voidable, since the infirmity of the judgment appears on the record itself, citing Scott v. Newell, 146 S.C. 385, 144 S.E. 82; Finley v. Robertson, 17 S.C. 435, and Hood v. Cannon, 178 S.C. 94, 182 S.E. 306. It is not necessary to here consider whether the judgment was voidable because if it were only voidable it would not be subject to attack in the Court of Common Pleas. Having concluded above that the Probate Court did have jurisdiction to admit the destroyed will of James B. Davis to probate in common form and that the quantum of proof was such as to satisfy the Judge of Probate as to the genuineness of the will, the inescapable conclusion is that the judgment admitting the will to probate was not in any sense void. 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, but, as pointed out above, such probate does not affect the validity or invalidity of any particular clause or settle any question of construction.

Having reached the conclusion that the probate of the will of James B. Davis could not be attacked in this cause, it is unnecessary to determine whether or not he did make a valid will in 1942 and did not prior to his death revoke the same. We have, however, considered these questions and shall set forth our views. A careful study of the record reveals conclusively that James B. Davis did make a valid will in 1942 which was accidentally destroyed by fire some time during the year 1943, probably the latter part of May, and that there is not sufficient evidence in the record from which it could be concluded that James B. Davis intended to adopt the accidental destruction as a revocation of the will.

The scrivener of the will, Mr. J.M. Spivey, testified in this case and his affidavit made before the Court of Probate was in the record. His testimony shows that there were three witnesses to the will, that they were all present and witnessed the signature of the testator, and his affidavit states positively that the will was executed by the testator as provided by law. No effort was made by the respondents to show by this witness or any other witness in detail that the will was not executed in the manner provided by law. In fact any detailed analysis of the signing of the will was studiously avoided by the respondents. In the light of this affidavit and his testimony we must conclude that the will in question was properly executed by the testator in accordance with the provisions of the pertinent statute.

That the will was accidentally destroyed by fire is open to no doubt, whatsoever. Therefore, unless the testator adopted this accidental destruction as his own act, coupled with the intention to revoke the will, then the destroyed will when properly proven must stand. The legal presumption which we spoke of in Lowe v. Fickling, supra, which arises when a testator takes possession of his will and the same cannot be found after his death, namely, that the testator destroyed it animo revocandi, no longer exists when the destruction of the will is clearly shown to have been by accidental means. This is necessarily so since the fact completely rebuts the presumption that the testator destroyed the will. Nor do we think that the mere fact that the testator had knowledge of the accidental destruction would give rise to a presumption that the testator intended to adopt the accidental destruction as a revocation thereof. In Underhill on Wills, Par. 225, page 308, the rule is stated thus: "If the will is destroyed without the consent of the testator, the act of destruction may be a valid revocation if it is ratified by him subsequently. But the ratification must be evidenced by some act from which the court may with reason infer that the original act of destruction was approved by the testator. Mere silence on the part of the testator or a refusal to make a new will is not enough alone from which to imply a ratification."

In 57 Amer. Jur., Wills, Section 497, it is stated in connection with the revocation of a will (not destroyed by the testator) by ratification or adoption of the act of destruction as follows: "* * * But proof merely that the testator apparently acquiesced in the destruction or mutilation of his will by another and his failure to make a new will is not sufficient to establish an intent on his part to adopt such destructive acts with intent to revoke the will, especially where the testator was in very poor condition, both physically and mentally, following his discovery of the fact that the will had been destroyed."

Again in 57 Amer. Jur., Wills, Section 566, in connection with the weight and sufficiency of evidence, it is stated: "Clear evidence is required to prove an intent to revoke a will once regularly made * * *."

The substance of the evidence relied on to establish a revocation of the will in this case by adoption or ratification, is the testimony of the widow to the effect that the testator talked about his will after it was burned and stated that he was planning on making another, but that he did not make it before he died, and also the testimony of Emerson L. Ard, Esq., with reference to the conversation which he had with the testator on July 5 or July 6 at Hemingway and as set forth above. The fact that the testator intended to make another will is no evidence whatsoever that he intended to adopt the destruction of the will accidentally as a revocation thereof, for the obvious reason that it could just as well be presumed that it was his intention to republish the will in the same terms. The testimony of his conversation with Mr. Ard, especially in view of the fact that Mr. Ard gained the impression that after he talked to the testator he went to the office of Mr. Spivey, would seem to negative the idea that the testator desired to die intestate. In all events, however, the record is wholly insufficient to establish by clear evidence that James B. Davis intended to adopt the accidental destruction as his own act of revoking the will. Any other conclusion would be based upon a presumption which is unwarranted under the law.

For the foregoing reasons this Court is of the opinion that the Decree of the Circuit Judge should be reversed and the cause remanded to the Court of Common Pleas for Williamsburg County with instructions to dismiss this action, and it is so ordered.

FISHBURNE, STUKES, TAYLOR and OXNER, JJ., concur.

DAVIS v. DAVIS, et al