lished by parol, is regarded with suspicion and not sustained, except upon the strongest evidence that it was founded upon valuable consideration and deliberately entered into by the decedent."

In Wilson v. Gordan, 73 S. C. 160, 53 S. E. 79, this Court says: "Where a contract to make or not to revoke a will is set up, there are strong reasons for requiring an agreement definite and certain, established by evidence clear and convincing. The evidence comes from the living against the dead, who cannot speak in his own behalf in disproof of a charge of the violation of a solemn obligation. For this reason it is obvious little, if any consideration should be given to the testimony of those who claim the benefit of such a contract. On account of the secrecy observed by most persons as to the will they expect to make, there is little general discussion of the subject, and it is, therefore, difficult to disprove any intention or agreement attributed to the testator. Again, the discussion by two persons bound to each other by the closest ties of affection as to the disposition of their property resulting in separate wills by which the property of each was left to the other, affords no ground for the inference that either understood, or exacted a legal obligation. Such action may be far more reasonably attributed to the promptings of affection, and Courts should not introduce the mercenary element except on clear affirmative proof that it was present within the understanding of both parties. With this statement of the character and strength of the evidence which ought to be required in cases of this kind, we consider that which is here offered" ***

On page 164 the Court says: "All the facts relied on as implying a contract to make wills are entirely consistent with the absence of contract, and the presence of the union of life and mutual affection as the impelling motive." ***

And lower on same page: "The facts that there was an absolute devise from each sister to the other without limita

tion, was strong evidence that there was no intention to limit the power of alienation. When an intention is reduced to writing, either in form of a will or contract, there is always a strong implication of fact that the whole intention has been expressed, and an implication still stronger that there is no agreement or intention contrary to that expressed." This principle is approved of in other States. Allen v. Bromberg, 50 Southern Rep. 884 (Ala. case); Edson v. Parsons, 50 N. E. Rep. 265 (N. Y. case). Our Court also says in Church v. Farrow, 7 Rich. Eq. (28 S. C. Eq.) 383: "It is, however, equally settled that the terms of the agreement should be unambiguous and definitely ascertained. a Court be at liberty to conjecture the intention of the parties, it might fall into the error of decreeing what the parties never contemplated." "Specific performance of an agreement is not an absolute right in the party, but a question of sound discretion in the Court." Holley v. Anness, 41 S. C. 354, 19 S. E. 646; Matheson v. McCutchen, 84 S. C. 256, 66 S. E. 120.

If

In establishing the alleged agreement when Jas. J. Dicks was examined, objection was made, and his evidence as to transaction and communications he had with the deceased

must be excluded under section 438 of the Code of 2 Procedure. McAulay v. McAulay, 96 S. C. 86, 79 S. E. 785. There was no attempt to prove an earlier agreement or contract for mutual wills or survivorship prior to September 11, 1890, the time the wills were drafted and executed, and there is no proof at all of any written agreement. All the proof relied on to establish the agreement is parol and that is confined to the testimony of the plaintiff and T. R. Erwin, on the part of the plaintiff, and Messrs. D. S. and E. P. Henderson, attorneys, who advised and drafted the wills. D. S. Henderson, being the one who advised, and E. P. Henderson being the draftsman of the wills. A careful examination of all the evidence on this point convinces us that there was no agreement between

Opinion of the Court.

[100 S. C. James J. Dicks and L. F. Dicks, that the wills were written and executed by them because of an agreement between them to make mutual, irrevocable wills. But on the contrary, both the plaintiff and his witness, Erwin, give as a reason that the wills were executed was because their stepmother was threatening to sue L. F. Dicks as administrator.

Taking the evidence as a whole we fail to find that the plaintiff has made out his case by the preponderance of the testimony. The evidence was the plaintiff shows that they were mistaken and inaccurate in their statement due to defective memory, lapse of time, or some other excusable cause. While the evidence on the part of the defense, especially that of D. S. and E. P. Henderson, is clear, definite, positive, and convincing, and establishes beyond question that there was no such agreement that the wills were to be mutual wills and intended to be irrevocable and that the purpose and object in making the wills were not intended as claimed by the plaintiff. D. S. Henderson is positive of this, and testifies most emphatically that this was not the object and purpose. E. P. Henderson is equally as positive. The evidence of the Hendersons, backed up as it is by their books in reference to the payments for the wills and all of the circumstances of the case, convince us that they were correct in their recollections as to the transactions. Mr. Erwin is in bad physical condition, the transaction was years ago, and by length

of time, or impaired memory, we are satisfied he is 3 mistaken. The overwhelming preponderance of the

testimony on this crucial question is against the plaintiff, he has failed upon this vital point to establish his contention, but the defendants, by a clear preponderance of the testimony, have shown that there was no such contract or agreement, and his Honor was in error in so finding, and these exceptions must be sustained.

We do not think that it is necessary to consider all of the exceptions, other than to say that the eleventh exception should also be sustained, as there is no testimony to sustain

his Honor's finding that L. F. Dicks was incapaci4 tated and unduly influenced. Mrs. Cassels and Miss Dicks were closely related to him, and it was natural that they should be kind to him, and also to their credit that they were, and there is no proof that justifies the finding by his Honor that he was incapacitated and unduly influenced.

The whole testimony shows us that the will of 1911 was the will of L. F. Dicks made upon due consideration and intent to dispose of his property as therein provided for. Judgment reversed.

MESSRS. CHIEF JUSTICE GARY and JUSTICES HYDRICK and GAGE concur in the opinion of the Court.

MR. JUSTICE FRASER, concurring. I concur on the ground that no contract for mutual wills is shown. I do not think the question of undue influence can arise in this case.

9012

EDENS v. GIBSON ET AL.

(84 S. E. 1005.)

BILLS AND NOTES. INNOCENT HOLDER FOR VALUE BEFORE MATURITY. EVIDENCE. DIRECTION OF VERDICT.

1. BILLS AND NOTES-INNOCENT PURCHASER-EVIDENCE.-Letters written by the payee to the maker of a negotiable promissory note before its transfer are not admissible in evidence, to affect the rights of an innocent purchaser for value, who thereafter purchases it, before maturity.

2. BILLS AND NOTES-INNOCENT HOLDER FOR VALUE.-Evidence tending to show that the payee of a negotiable promissory note acted in bad faith, is not admissible in an action by an indorsee and holder for value before maturity, where there is no evidence to show that the indorsee acted in bad faith, or had notice of any defect affecting the paper or facts to put a prudent man upon inquiry, before his purchase.

3. EVIDENCE-DOCUMENTARY EVIDENCE- ENTRIES IN Books. In an action on a note by an indorsee thereof, defendant on the ground of

Exceptions.

[100 S. C. failure of consideration and on the ground that plaintiff was not an innocent purchaser of the note for value before maturity, a ledger sheet, showing the account between plaintiff and the payee and an entry on the stub of the payee's checkbook, stating that the note was placed with plaintiff for collection, were properly excluded. 4. BILLS AND NOTES-ACTIONS-DIRECTION OF VERDICT-FAILURE OF PROOF. In an action on a note by an indorsee thereof, in which defendants alleged a failure of consideration and that plaintiff took the note after maturity with knowledge thereof, where there was no evidence to make out the attempted defense, a verdict for plaintiff was properly directed.

Before MOORE, J., Orangeburg, Spring term, 1914. Affirmed.

Action by H. T. Edens against J. L. Gibson and E. M. Robinson. From judgment for plaintiff, the defendants appeal upon the following exceptions:

1. Because his Honor, the presiding Judge, erred in ruling out the entry made on the stub of the check book of the Carolina Machinery and Manufacturing Company: "Note, Gibson & Robinson, Retd. & placed with H. T. Edens for collection, chge. H. T. Edens $129.09.”

Made on the 13th day of November, 1912, the day and time the said note was transferred to the said H. T. Edens, as the said entry was evidence tending to show the purpose for which the transfer of the said note was made to the said H. T. Edens.

2. Because his Honor erred in holding that the memorandum or entry in the book of check stubs made by the transferor, while not in the immediate presence of plaintiff, but made substantially at the time of the transaction, constituted no evidence of the terms of contract under which the plaintiff acquired and held the said note.

3. Because his Honor erred in holding that the memorandum or entry on the books of check stubs was not a part of the res gestae and constituted no evidence of the character of plaintiff's possession of the note.