Counts v. Wilson

• Decision Date: 21 February 1896
• Citation: 23 S.E. 942,45 S.C. 571
• Parties: COUNTS v. WILSON.
• Court: South Carolina Supreme Court

23 S.E. 942

45 S.C. 571

COUNTS v. WILSON.

Supreme Court of South Carolina

February 21, 1896

Appeal from common pleas circuit court of Lexington county; Joseph H. Earle, Judge.

Action by Mary J. Counts against Willis M. Wilson to recover possession of lands. From a judgment in favor of plaintiff defendant appeals. Affirmed.

Meetze & Muller and Lyles & Muller, for appellant.

C. M Efird and Ragsdale & Ragsdale, for respondent.

GARY J.

This is an action for the recovery of a small lot of land in the town of Peake, S.C. The plaintiff claims under a devise in the last will and testament of Adam Stoudmire, who died about the year 1864. Testimony was introduced to show that the said will was destroyed by fire, in the year 1865, when the courthouse at Lexington was burned. The plaintiff offered in evidence what she claimed was a copy of said will, which is now on file in the office of the judge of probate for Lexington county, but which was rejected. No certificate was attached to this alleged copy. A copy which belonged to one of the executors, now deceased, and at this time in the possession of the surviving executor, was also offered by the plaintiff, and was admitted in evidence. The exceptions of the appellant are as follows: "(1) Because his honor allowed the witness J. W. Stoudmire to testify as to the contents of the alleged will of Adam Stoudmire, without sufficient proof as to the probate and loss of said will. (2)Because his honor admitted the alleged copy of the will of Adam Stoudmire in evidence, without sufficient proof that it was a correct copy of said will, and without sufficient proof of the probate and loss or destruction of the original will. (3) Because his honor instructed the jury to the effect that if they believed the testimony offered by the plaintiff as to the execution and probate of the alleged will of Adam Stoudmire, and as to its loss, and that the paper offered in evidence was a copy thereof, they should find for the plaintiff the possession of the land in dispute; basing his ruling as to the sufficiency of plaintiff's title upon the alleged copy of the will of Adam Stoudmire which had been admitted in evidence."

The first exception complaints of error on the part of the presiding judge in allowing "the witness J. W. Stoudmire to testify as to the contents of the alleged will of Adam Stoudmire, without sufficient proof as to the probate or loss of said will." This only involves a preliminary question, and the testimony of the witness J. W. Stoudmire shows that the presiding judge did not abuse his discretion in receiving such testimony. Furthermore,...