Rollin v. Whipper
| Decision Date | 22 March 1882 |
| Citation | 17 S.C. 32 |
| Parties | ROLLIN v. WHIPPER. |
| Court | South Carolina Supreme Court |
1. Section 62 of the code of procedure requires a trial by jury in the Circuit Court on appeal from the Probate Court, in those cases only where, according to the rules of law, a jury trial may be demanded.
2. Section 276 specifies the classes of cases in which a jury trial may be demanded as a legal right. In all other cases it is discretionary with the Circuit judge, and from his determination no appeal lies.
3. On appeal to the Circuit Court from an order of the Probate Court revoking letters of administration, the Circuit judge committed no error in refusing to submit to a jury issues of fact involving questions of fraud and waiver.
4. Upon the application of the widow filed within five weeks after the death intestate of her husband, the judge of Probate revoked the letters of administration previously granted to a daughter of the intestate. Held , that in so doing he did not transcend his powers.
Before KERSHAW, J., Charleston, July, 1881.
The opinion states the case.
Mr W. J. Whipper , for appellant.
Messrs De Saussure & Son , contra.
Within a few days after the death of William Rollin, late of Charleston county, Frances A. Whipper, wife of W. J. Whipper applied to the judge of the Probate Court of said county for letters of administration. The petitioner represented that she and her three sisters were the heirs of the deceased. Upon this showing the letters were granted.
Within a month afterwards, Margaret Rollin filed a petition claiming that she was the widow of the intestate, and therefore entitled to administration; that by reason of her absence she was ignorant of the application of Frances Whipper, and she now applies for the revocation of the letters granted to the said Frances. Upon this petition the Probate judge revoked the appointment of the said Frances, and ordered that citation be issued under the application of the said Margaret Rollin. From this order Frances A. Whipper appealed to the Circuit Court.
On this appeal the following issues of fact were submitted as raised by the pleadings: 1st. Whether or not fraud was practised by Frances Whipper in obtaining letters. 2d. Whether or not the respondent in the case, Margaret Rollin, waived her primary right to the letters. The appellant below demanded a jury for the trial of these issues. The judge declined to submit the issues to a jury, and having heard the case, dismissed the appeal with costs. The appellant below, Frances A. Whipper, has appealed from this order of Judge Kershaw upon four grounds in form, but really upon but one, to wit: that his Honor erred in refusing to submit the questions of fact raised in the appeal to a jury.
Section 62 of the code provides that upon appeals from the Probate Court to the Circuit Court " such court shall proceed to the trial and determination of the questions according to the rules of law, and if there is any question of fact or title to land to be decided, issue may be joined thereon under the direction of the court, and a trial thereof had by the jury." This section requires, first, that the appeal shall be heard according to the rules of law , and then provides for a jury, where according...
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