In Re Perry's Will , 106 S.C. 80 ( 1916 )

October 3, 1916. The opinion of the Court was delivered by This is a proceeding to prove the will of Mrs. Emma E. Perry in "due form of law." The finding of the Judge of probate was against the will. An appeal from this finding in the case was heard by Judge Frank B. Gary. His Honor found that Mrs. Perry was without capacity to make a will and that she did not sign the will. From this decree this appeal is taken.

There are five exceptions, but appellant states that there are two questions, to wit: (1) Did the testatrix have testamentary capacity? (2) Is the will forgery? In argument here, appellant says:

"Since the decision of the case of In re Solomon's Estate,74 S.C. 189, 54 S.E. 207, there can be no doubt that the probate of a will is a law case. The effect of the various statutes governing the probate of wills was therein reviewed, and the underlying distinction between a case in equity and a case in law was clearly pointed out. The principles enunciated in that case have been restated and adhered to in the later cases of Thames v. Rouse, 82 S.C. 40, 62 S.E. 254, and Mordecai v. Canty, 86 S.C. 470, 477, 68 S.E. 1049.

"The principle that the Supreme Court will not review findings of fact made by the Circuit Judge in law cases is clearly understood by the appellant herein. But the rule just stated is broader than it appears in the statement. We conceive the rule to be that the Court will not review findings of fact made by the Circuit Court in a law case, except to see that the findings of fact have, in the record, evidence to support them, and that, if the evidence relied upon to support them appears to be so contradictory as to be unworthy of belief, then there is, within the rule, no evidence to support the findings of fact.

"As was stated by the Court In re Solomon's Estate,74 S.C. 191, 54 S.E. 207: ``All the cases on the subject, fromSullivan v. Thomas, 3 S.C. 531, to Ex parte Wallace, 73 S.C. 109,52 S.E. 873, hold that the Circuit Court's finding of fact in a law case is final, in the sense that this Court has no power to review it, unless it is entirely unsupported by evidence.'"

Neither finding is "entirely unsupported by evidence." There is evidence to support the finding of a want of capacity. It is true that no witness states a want of capacity at the moment of signing the will, and that is the important fact. Her condition, however, is described before and after that moment. From these facts, an inference of incapacity may be drawn. That inference is not for this Court. The preponderance is not a question for this Court. There is not only evidence that Mrs. Perry did not sign the will, but that she could not have signed it. Let Judge Gary's decree be reported.

The appeal is dismissed.