February 28, 1925. The opinion of the Court was delivered by "This was an action brought by the appellant, as executor of the last will and testament of his mother, the late Susan Ann Freeman, against the above-named contestants. The action originated in the Probate Court for Richland County, S.C. and was instituted pursuant to a notice served upon the appellant by Hon. G. Duncan Bellinger, Judge of Probate, a petition having been filed to have the will so proved by Nordie Roberts, as guardian ad litem for the contestants above named, alleging the invalidity of the will and codicil.
"In addition to the parties to this appeal, Thomas Freeman, the husband of the deceased, was a party to the action as instituted in the Probate Court.
"The contestants are the minor children of Edmund Roberts, one of the devisees and legatees, under the original will of the said Susan Ann Freeman. The said Edmund Roberts had predeceased the said Susan Ann Freeman, and subsequent to his death the testatrix executed an alleged codicil to her original will, under the terms of which each of the above-named contestants was left the sum of $1,000 — that is to say $3,000 to the three children.
"In addition to her husband, Susan Ann Freeman had three children, the above-named Edmund Roberts, and two sons, born to her after her marriage to her husband, Thomas Freeman. These two sons were Rufus Freeman, the executor-appellant, and a son named Marvin Freeman, who predeceased his mother; it having been previously stated herein that Edmund Roberts likewise predeceased the testatrix.
"The testatrix died on the 16th day of July, 1921, leaving of force her last will and testament, dated 19th February, *Page 393 1919, to which was attached a codicil, dated the 6th day of June, 1921. The will and codicil were filed in the office of the Judge of Probate for Richland County, and both instruments were proved in common form of law by three attesting witnesses, and thereafter the said will and testament and codicil thereto were offered for proof in solemn form of law, pursuant to the notice served upon the executor by the Judge of Probate as hereinabove set forth.
"The petition of the executor was in the usual form. It set forth the decease of the testatrix and the fact that she had left the said will and the said codicil, and that the contestants herein, along with the said Thomas Freeman, were parties who had some interest in the estate under the will and codicil and under the statute of distribution.
"The defendants other than Thomas Freeman, answering through their guardian ad litem, denied, among other things, `that the alleged will and codicil thereto of the said Susan Ann Freeman referred to in the petition was the last will and codicil of the said Susan Ann Freeman, deceased,' and alleged `that the said will and codicil referred to in the petition was procured by the use of undue influence upon the said Susan Ann Freman, deceased, by the said R.M. Freeman, who bears the relationship to the said Susan Ann Freeman, deceased, of son,' and further alleged `that the said Susan Ann Freeman was mentally incapable of making a will and codicil and could not understand the meaning and effect thereof.'"
The Probate Court sustained the will and codicil, an appeal was had to the Circuit Court, and the case was heard by Judge Townsend and a jury.
Judge Townsend framed and submitted to the jury certain issues as to the codicil, the attack as to the will being withdrawn. At the close of the testimony, appellants made a motion for a directed verdict in their favor both as to the mental incapacity of the testatrix and as to undue influence, which motion was refused by his Honor and the case submitted *Page 394 to the jury on issues submitted by his Honor. The jury found against the codicil; a motion for a new trial was made by the appellants and refused.
The exceptions, 21 in number, challenge the correctness of his Honor's ruling throughout the case, and will not be considered seriatim.
The respondents had the right to withdraw their attack on the will.
There was some evidence to submit to the jury as to undue influence and mental incapacity, and his Honor was not in error in refusing to direct a verdict as asked for by the appellants.
But he fell into the same error in charging the jury as Judge McIver did in Matheson v. Matheson. 125 S.C. 175;118 S.E., 312, and the exceptions alleging error in these particulars must be sustained for the reasons given in Matheson v. Matheson, supra, and a new trial given.
Appellants' exceptions to the order of Judge Townsend settling the case for appeal is sustained. The Probate Judge's decree should not have been in the case as the trial in the Circuit Court was de novo.
Reversed, and a new trial granted.
MESSRS. JUSTICES FRASER and MARION and MR. ACTING ASSOCIATE JUSTICE W.C. COTHRAN concur.
MR. CHIEF JUSTICE GARY and MR. JUSTICE T.P. COTHRAN did not participate.