Statute": 206 S.C. 1, 32 S.E.2d 889; 124 S.C. 122, 117 S.E. 192; 100 S.C. 341, 84 S.E. 878; 89 S.C. 347, 71 S.E. 969.,W.T. LOOPER, RESPONDENT, v. MONTIE WHITAKER, IRIS W. MORRIS AND JOHN A. HENRY, ADMINISTRATOR C.T.A. OF THE ESTATE OF AVICE W. LOOPER, APPELLANTS." />

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LOOPER v. WHITAKER ET AL.

May 14, 1957

W.T. LOOPER, RESPONDENT,
v.
MONTIE WHITAKER, IRIS W. MORRIS AND JOHN A. HENRY, ADMINISTRATOR C.T.A. OF THE ESTATE OF AVICE W. LOOPER, APPELLANTS.



The opinion of the court was delivered by: Stukes, Chief Justice.

May 14, 1957.

This is an action to establish a contract to make a will. The plaintiff, now respondent and above eighty years of age, in 1933 married as his second wife a maiden lady who was more than thirty years his junior. They had no children, but he has sons and daughters by his former marriage. She was working when she was married and continued at her employment until her death in 1955, at which time she was earning a salary of $260.00 per month. She remained with the same employer for over thirty years — from some time before her marriage until her death.

At the time of their marriage respondent was in poor financial condition and the mortgage on his home had been foreclosed. It was repurchased, title taken to his wife, and together they made the long-continued payments which redeemed it. It constitutes the bulk, at least, of the property which is at stake in this litigation.

The action was brought by respondent against the other devisees of the will and against the administrator, c. t. a., of the estate of his deceased wife. In the complaint it was alleged in substance that respondent and his wife entered into a contract in 1942 whereby they agreed to make and keep in force mutual wills whereby each would be the sole beneficiary of the other. Respondent performed his portion of the contract and did not revoke his will during the life of his wife, but without notice to him she subsequently executed her last will, the terms of which have been mentioned, which was in violation of the contract and therefore invalid, whereby the property of the testatrix was impressed with a trust for respondent's benefit in fee simple. The prayer of the complaint was for specific enforcement of the alleged contract and declaration of the trust.

The answer contained a general denial, and the issue so made was tried before the court, without jury or reference. It was the judgment of the court that respondent had made out his case and it was ordered and decreed accordingly.

The appeal of the defendants presents a question of fact which it is the duty of this court to decide, giving due weight to the conclusion of the trial court. Accordingly, we have carefully considered the evidence and have reached contrary conclusion to that of the trial court, wherefore its judgment will have to be reversed.

The most that was established by the testimony of respondent and his other witnesses, nearly all of whom being members of his family, was that the testatrix repeatedly said that she and respondent had agreed to make, or had made, mutual wills. No witness referred to a contract which required that neither should revoke his or her will in the lifetime of the other. And there are no facts in the case which induce the finding of such. An agreement to make "mutual" or reciprocal wills, such as those here, is far short of a contract to keep them in force. In the testimony of the witnesses for the respondent there is the constantly recurring refrain of "mutual wills", as if that were all that is necessary to establish respondent's claim.

The attorney who prepared the reciprocal wills (and also the subsequent will of the testatrix) testified that he had no recollection of the accompanying conversation between him and his clients. If a contract had been mentioned, it is inferable that it would have impressed the attorney and he would have recalled it, which he did not. Young v. Levy, 206 S.C. 1, 32 S.E.2d 889. And if the reciprocal wills, prepared by him and executed under his supervision, had been pursuant to a contract which was intended to be binding upon the makers, Mrs. Looper would hardly have returned to him to make a conflicting will in violation of the contract.

Nor was the existence of a contract indicated by the testimony of respondent's daughter-in-law that decedent told her that she and respondent had agreed upon, and executed, mutual wills but that she, the decedent, had destroyed hers and made another, and when asked why, according to the witness decedent said that she did not intend for any of the Loopers to have the property. The witness further said that decedent told her, "Don't you dare tell it, because I don't want any trouble. * * *" It is improbable that if the decedent was bound by contract with respondent not to alter her will without notice to him, that she would have confided breach of it to the daughter-in-law of respondent, with whom he was in close association.

Credulity is strained by other portions of the testimony of this daughter-in-law of respondent. The following excerpt should be considered with it in mind that the reciprocal wills were executed in 1942, the last will of testatrix in 1946, and the case tried in 1956:

"Q. You say she (testatrix) told you that she had a mutual will with Mr. Looper? A. That was what she said.

"Q. Then she in turn said she had torn it up and made another? A. Yes, sir. * * *

"Q. Had she ever talked to you on other occasions about a will or anything else? A. Yes, sir, she told me ...


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