Meehan v. Meehan

THE STATE OF SOUTH CAROLINA

In The Court of Appeals

Jerry Meehan,       
Appellant,

v.

Mary Elizabeth Meehan, Paul Embler, Richard J. Hurst, William L. Hendrix,
Jr., Betty H. Deal, Robert K. Hendrix, Virginia H. McEntyre, First Baptist
Church of Pendleton, First Baptist Church of Twin Falls, Idaho, First
Baptist Church of Anderson, J. Louie Hendrix, Diane Hendrix, F. Ben Hendrix,
Jr., Barbara E. Beach, of Whom, J. Louie Hendrix, Paul Embler and Barbara
Beach are,        Respondents,

In the matter of:  Sammie Bruce, Deceased.

Appeal From Anderson County

James W. Johnson, Jr., Circuit Court
Judge

Unpublished Opinion No. 2004-UP-030

Heard November 6, 2003 – Filed January
16, 2004

AFFIRMED

J. Calhoun Pruitt, Jr., of Anderson, for Appellant.

Michael F. Mullinax, of Anderson, for Respondents.

PER CURIAM:  This case involves whether
a conformed copy of a will should be admitted to probate.  Jerry Meehan as Personal
Representative of the estate of Sammie Bruce, appeals the circuit court’s reversal
of the probate court’s order, which accepted the conformed copy of the will
for probate.  We affirm.

FACTS

Bruce died on July 8, 1999 from cancer after a period
of hospitalization and recuperative care at National Healthcare between mid-April,
1999 and her death.  During this time period she appointed her great-nephew
Paul Embler as power of attorney to handle her affairs.  As part of his duties,
Mr. Embler secured Bruce’s residence by changing the locks, handled her finances,
and made specific gifts at her request.  Repeatedly, Embler asked Bruce about
updating her “paperwork” and about the location of her “paperwork.”  She told
him that her “important papers were in a dresser drawer.” 

Before Bruce’s death, Mr. Embler went with his
aunt Ella Hendrix to the residence to search for the “important papers.”  They
found a dresser drawer with various documents in it that they then removed. 
One of the documents that appeared to Mr. Embler to be a will was opened and
read by him.  It stated that Meehan, another great-nephew of Bruce, was named
as Personal Representative of Bruce’s estate.  At the funeral, Mr. Embler gave
the documents to Meehan.  The documents included a conformed copy of Bruce’s
will and not an original executed will.

Meehan petitioned the probate court for formal
testacy and appointment as Personal Representative.  All testate heirs of Bruce’s
estate and intestate heirs not listed as beneficiaries under the will were listed
as Respondents.  The probate court admitted the conformed copy of the will to
probate. The Probate Court Judge granted formal testacy and appointed Meehan
as Personal Representative of the estate.

The Respondents appealed the probate court findings
to the circuit court.  The circuit court found that there was no clear and convincing
evidence in the record to overcome the presumption that the original will had
been destroyed.  The court found that the will was not entitled to probate and
Bruce’s estate must be administered as an intestate estate.  The circuit court
reversed and remanded the probate court’s ruling.  Meehan appeals.

STANDARD OF REVIEW

An appeal from the probate court to the
circuit court regarding the validity of a will is a matter of law.  Golini
v. Bolton, 326 S.C. 333, 338, 482 S.E.2d 784, 787 (Ct. App. 1997).  In an
action at law decided in the probate court, the circuit court may not disturb
the probate court’s findings of fact unless there is no evidence to support
them.  Matter of Howard, 315 S.C. 356, 361, 434 S.E.2d 254, 257 (1993). 
On appeal, this court will examine the record to see if there is any evidence
to reasonably support the factual findings of the probate court.  Dean v.
Kilgore, 313 S.C. 257, 259, 437 S.E.2d 154, 155 (Ct.App. 1993).

LAW/ANALYSIS

Meehan argues the circuit court erred
when it reversed the probate court because the evidence in the record supported
the probate court’s finding that Bruce did not intend to revoke her will.  We
disagree.

“When the testator takes possession of
his will and it cannot be found at his death, the law presumes that the testator
destroyed the will animo revocandi.” Golini v. Bolton, 326 S.C.
333, 340, 482 S.E.2d 784, 787 (Ct. App. 1997).  In arguing the presumption of
revocation does not apply, Meehan relies on Golini, asserting that the
facts of that case and the present one are similar.  In Giolini, the
probate court found that the will had not been revoked because the will had
been returned to the attorney’s office.  The attorney’s usual procedure was
to keep some executed wills for clients in his lock-box.  The probate court
held that as the testator never had possession of the will, the presumption
of revocation never arose.  It admitted a conformed copy of the will to probate. 
The probate court’s findings were affirmed by the circuit court and this court. 
We find Golini factually distinguishable from this case because the attorney
here did not take possession of Bruce’s will after execution.

Sammie Bruce executed her will and took possession
of it on October 7, 1988.  Richard Ruele, the attorney who prepared a will for
Bruce on October 7, 1988, stated that it was routine practice for him at that
time to prepare an original will for his clients as well as a conformed copy. 
He stated that Bruce would have been given the only original will as well as
a conformed copy such as the one under discussion here.  We find the presumption
of revocation does arise in the present case.

This presumption, however, is a presumption of
fact and can be rebutted.  Bauskett v. Keitt, 22 S.C. 187, 191 (1885).
The burden of rebutting the presumption with clear and convincing evidence belongs
to the proponent of the will.  Estate of Mason v. Mason, 289 S.C.273,
277, 346 S.E.2d 28, 31 (Ct. App. 1986).  The presumption of fact must be rebutted
by showing evidence “that the will existed at the time of his [the testator’s]
death, was lost subsequent thereto, or had been destroyed by another without
authority to do so.”  Lowe v. Fickling, 207 S.C. 442, 447, 36 S.E.2d
293, 295.

Sammie Bruce had the copy of the will in her possession
from its execution in 1988 until she was hospitalized in 1999.  No original
will was found at her death.  In the drawer where Bruce said her important papers
were kept, there was no original will.  There were, however, only copies of
the 1988 will and a copy of a previous will.  Meehan produced no evidence, that
the original will was lost after Bruce’s death.  Furthermore there was no evidence
presented of a third party destroying the will without her knowledge.  The probate
court speculated on the possibility that the decedent’s will may have been destroyed
by a third party while Bruce was in the hospital.  However, the law does not
presume illegal acts.  Lowe v. Fickling, 207 S.C. 442, 447, 36 S.E.2d
293, 295. 

Reviewing the record, we find that Meehan did not
succeed in rebutting the presumption that Sammie Bruce destroyed the will by
clear and convincing evidence.  Accordingly, we hold the circuit court was correct
when it determined the probate court erred in admitting the copy of the will
to probate. [1]  

AFFIRMED

GOOLSBY, HUFF, and BEATTY, JJ., concur.

[1] The respondents contend the probate court erred
when it decided to admit Embler’s testimony because the testimony violated
the Dead Man’s Statute. S.C. Code Ann. §19-11-20 (Supp. 2002).  We need not
address this issue because even if the evidence was not properly admitted
the record still fails to rebut the presumption that Bruce revoked her will.