Ex parte Brock

The opinion of the court was delivered by Mr. Chief Justice MoIver. The will of John W. Wells, dated 2d January, 1875, having been admitted to probate in common form, on the 8th of February, 1890, by the judge of probate, the appellants, as heirs at law of said John W. Wells, demanded that the will be proved in solemn form. Accordingly, on the 20th of November, 1890, after hearing the testir mony, the judge of probate rendered his decree in favor of the validity of the will. From this decree an appeal was taken by the said heirs to the Court of Common Pleas, and the case came on to be heard before his honor, Judge Norton, and a jury, upon an issue of devisavit vel non-. The finding of the jury being in favor of the will, this appeal was taken by said [352] heirs, upon the several grounds set out in the record, substantially as follows: 1st. Because the contestants of the will were denied the right to reply in argument. 2d. Because the Circuit Judge erred in charging the jury as follows: “When you find a paper like this and nothing more, if the witnesses come to you and say that the signatures are theirs, but they don’t remember the transaction at all, they only recognize their signatures, and they recognize the signature of Mr. Wells, then the law presumes that all of the formalities had been complied with.” 3d. Because of error in charging the jury: ‘ £The presumption is, that that paper was executed according to the law as it now exists, but that presumption may be rebutted by the testimony showing that it was not so executed, and it is for you to say, from all the presumptions and from the testimony of the witnesses, whether there was a failure to execute the will in one or the other particulars which I have mentioned.” 4th. Because his honor erred in refusing to grant a new trial, “upon the ground that the verdict was clearly against the great preponderance of the testimony.” 1 The first ground is based upon the assumption that appellants offered no testimony, and hence, under the general rule, were entitled to the reply. In the first place, we think this assumption is not well founded, for it appears in the “Case,” that, while one of the subscribing witnesses to the will was on the stand, he was asked, on cross-examination, to make a diagram of the house in which the will was said to have been executed, which diagram was' put in evidence by the counsel for appellants during that examination. This was quite sufficient to show that the appellants did offer testimony, as will be seen by reference to the case of Hamilton v. Feemster, 4 Rich., 573, where the defendant, in course of plaintiff’s testimony, offered and read in evidence a letter from plaintiff to defendant, and it was held, that defendant had thus offered evidence, and was, therefore, deprived of the reply in the argument. See, also, Owens v. Gentry, 30 S. C., 490; Willoughby v. Railroad Company, 32 Id., 410. But, in addition to this, the statute (General Statutes, section 1872), expressly giving to the executor, or parties propounding the will for [353] probate, in cdl trials upon appeals from the Probate Court, the right to open and reply in argument, as well as in evidence, is conclusive of the question. 2 The second and third grounds may be considered together. These grounds being based upon certain detached portions of the judge’s charge, it is necessary, under the well settled rule, that they should be considered in connection with the whole charge, which should be incorporated in the report of this case. It seems that there are two objections to the formality of the execution of the paper propounded as the last will and testament of John W. Wells : 1st. That it was not shown that the subscribing witnesses signed in the presence of each other. 2d. That it was not shown that one of said witnesses signed in the presence of the testator. It will be observed, that a period of about fifteen years elapsed between the signing of the paper and the taking of the testimony, and, therefore, as might well be expected, the witnesses were not able to speak definitely as to the smaller details of the transaction, as to where the paper was signed, or who was actually present at the time. But the testimony, which is all set out in the “Case,” leaves no doubt of the fact that it was signed by the testator as well as by the subscribing witnesses. It was under these circumstances that the instructions as to the presumption were given to the jury. These instructions practically amounted to this: that, where a paper propounded as a will, is shown to have been signed by the alleged testator, and by the requisite number of subscribing witnesses, in the absence of any satisfactory evidence to the contrary, the presumption is, that all the other formalities have been complied with. This, we think, is good law, and any other rule would render it impossible to prove a will where the subscribing witnesses were dead or their testimony was not attainable. This view is not without the support of authority. As is said in 1 Greenl. Evid., § 38a: ' 'Thus, if the subscribing witnesses to a will are dead, or if, being present, they are forgetful of all the facts, or any fact material to its due execution, the law will, in such cases, supply the defect of proof by presuming that the requisites of the statute were duly observed.” The same doctrine was re [354] cognized in the following cases decided in this State: Pearson v. Wightman, 1 Mill., Con. R., 336; Verdier v. Verdier, 8 Rich., 135; Welch v. Welch, 9 Id., 133. We do not think, therefore, that the exceptions to the judge’s charge are well founded. 3 Inasmuch as there was no exception to so much of the charge as instructed the jury, that the testator having died since the change in the law requiring that the subscribing witnesses should sign not only in the presence of the testator, but in the presence of each other, the case must be governed by the present law, though the will was executed before such change in the law, we do not feel at liberty to consider that question. 4 As to the fourth ground of appeal, it can scarcely be necessary, in view of the numerous cases in which this court has held that it had no jurisdiction to consider the question there presented, to say any thing. The judgment of this court is, that the judgment of the Circuit Court be affirmed.