Bauskett v. Keitt
| Decision Date | 02 March 1885 |
| Citation | 22 S.C. 187 |
| Parties | BAUSKETT v. KEITT. |
| Court | South Carolina Supreme Court |
1. In considering alleged errors in a charge, the charge must be considered as a whole, and not in detached portions.
2. Where a will is traced to the possession of testator, but cannot be found after his death, there arises a presumption of destruction by him; this, however, is a presumption of fact, rebuttable by evidence. If the depositories of the deceased pass into the custody of the heirs at law, and his papers are first examined by them, this does not, as matter of law, rebut the presumption, but is a circumstance to be considered by the jury in determining this question of fact.
3. Petitioners to establish an alleged lost will cannot assign error to the judge in charging that the fact that the persons most interested in the destruction of a will were the first and only persons to examine the depositories and papers of the deceased, was a strong circumstance to rebut the presumption of cancellation by testator, but that whether sufficient evidence or not was a matter for the determination of the jury.
4. The Circuit judge could not, without invading the province of the jury, charge " that where there are no corroborating circumstances, the presumption that the loss of the will is due to the act of the testator, rather than to other causes belongs to the lowest order of proof, and has no other effect than that of obligating the party who denies it to establish his case by some affirmative evidence."
5. The law will presume a destruction of a will by the testator (an innocent act) rather than by the heirs simply because of their opportunity of so doing, as this would be a criminal act.
6. An error in a charge resulting from a misapprehension of the request is no ground for a new trial, the matter requested having been afterwards fully and clearly charged by the judge.
7. Petitioners alleged that a lost will was witnessed by A, B and C. A and B testified that it was so witnessed, but C testified that he had never signed such will as a witness. Held , that the judge properly refused to charge the jury " that if they should come to the conclusion that the paper propounded is substantially the last will executed by deceased in the presence of A, B, and another witness who was not C, their finding should be for petitioners, unless they find that said will was subsequently revoked or destroyed."
8. Declarations of the testator are admissible to prove the destruction by him of his will.
9. There was no error in refusing to charge " that if the jury find that a duly executed will of the deceased was in his possession after he was physically unable to destroy it the presumption that such will, if not found at his death was destroyed by him, is rebutted."
10. Where two witnesses testified that an alleged lost will had been executed in the presence of themselves and another witness, all of whom had signed as witnesses, and such other witness denied it, the judge could not charge that the will was sufficiently proved, but he properly left this matter to the jury to be determined by them.
11. The contents of a letter from plaintiff to deceased could not be proved in behalf of plaintiff by parol testimony, there being no proof of loss and no notice to the representatives of the deceased to produce it.
12. A witness, C, called by plaintiff, testified that deceased had entrusted him with a message to plaintiff, which he had delivered, and what that message was. Plaintiff then offered himself to prove that the message so delivered was of a different tenor, and also another witness to prove C's statement that the message was other than that testified to. Held , that plaintiff's object being to discredit his own witness, the testimony offered was incompetent.
13. An exception not considered because too general in its terms.
14. Findings of fact concurred in by Circuit judge and jury, and by Circuit judge and Probate judge approved.
Before HUDSON, J., Newberry, November, 1883.
This was a petition in the Probate Court for Newberry County, filed by John Bauskett and Elizabeth Reid, devisees and legatees under an alleged lost will of Thomas B. Wadlington, deceased, praying that said will might be established and admitted to proof in solemn form. Thomas W. Keitt and Joseph L. Keitt, as administrators of said deceased, and they, together with their sister, Harriet A. Keitt, as distributees under the statute were the parties defendant. A copy of the alleged lost will, furnished by the draftsman, was set out in the petition. The case is fully stated in the opinion of this court.
Messrs. Moorman & Simkins, L. F. Youmans , and Johnstone & Cromer , for appellants.
Messrs. Suber & Caldwell , contra.
This was a proceeding, originally commenced in the Court of Probate for Newberry County, for the purpose of setting up an alleged lost will of one Thomas B. Wadlington, deceased, and having the same admitted to probate in solemn form. The petition set out a copy of what was alleged to be such lost will, which purported to have been executed in April, 1873, in the presence of R. V. Gist, Caroline Sondley, and Richard C. Sondley as subscribing witnesses. The judge of probate seemed to be of opinion that such a will was at one time executed, but found that the same had been revoked by the testator, and he therefore declined to admit the paper propounded as the will of Wadlington to probate.
From this decree the plaintiffs appealed to the Court of Common Pleas, and at the trial moved for and obtained an order to amend their petition by striking out the name of Caroline Sondley and inserting in lieu thereof the name of John R. Sondley as one of the witnesses to the alleged lost will. The Circuit judge ordered that the following question of fact be referred to a jury for determination, viz.: " Did Thomas B. Wadlington, late of the County of Newberry, die leaving of full force and effect a last will and testament of the same purport and like effect as the will alleged by plaintiffs to be lost, mislaid, or destroyed, and sought by them in these proceedings to be established and admitted to probate?" In response to the question submitted to them, the jury found, " No."
The Circuit judge then rendered his decree, fully concurring in the finding of the jury, saying that the evidence did not, in the first place, establish the due execution of the paper propounded as the will of Wadlington; and, in the second place, that the paper, whether duly executed or not, was traced to the possession of Wadlington, and its not being found after his death raised the presumption that he had revoked it, which the evidence offered for that purpose was not sufficient to rebut. He therefore dismissed the appeal and affirmed the judgment of the Court of Probate. From this judgment the plaintiffs appeal to this court upon various exceptions, which will be considered seriatim .
1. " Because the judge erred in charging and refusing to charge the jury as follows: (1) In refusing to charge that if the will has been traced into the possession of Wadlington, and at his death could not be found by his heirs at law, who alone had the custody of his depositories and examined his papers, the presumption that the testator destroyed the will, with the intention of revoking it, is not a presumption of law, but a presumption of fact, and rebuttable; and in charging the jury directly that the fact that if the will was traced into Wadlington's possession and could not be found at his death by his heirs at law, who alone had the custody of his depositories and examined his papers, was not sufficient to rebut the presumption of revocation by the testator." Upon this request, the Circuit judge instructed the jury as follows: In this we think there was no error.
In considering alleged errors in a charge, it is manifestly the duty of this court to consider the charge as a whole, and not in detached portions merely. As is said by Mr. Justice Story, in Magniac v. Thompson , 7 Peters , 390, affirmed in Spring Co. v. Edgar , 99 U.S. 659: See also remarks of Simpson, C. J., to the same effect in Lynn v. Thomson , 17 S.C. 138. Now, when we examine the whole charge of the Circuit judge in this case, it is quite manifest that, as to the point immediately under consideration, he instructed the jury that where a will is traced to the possession of a testator, and it cannot be found after his death, a presumption arises that he had revoked it by destroying it; that this, however, would be a presumption of fact, and therefore capable of being rebutted by other evidence, and that it would be for the jury to say, from all the evidence, whether such presumption had been rebutted.
It is clear, therefore, that he could not have instructed the jury that the fact that the will could not be found by the heirs at law, who alone had the custody of the alleged testator's depositories and examined his papers, was sufficient to rebut...
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