Bauskett v. Keitt

Citations

• 22 S.C. 187
• 1885 S.C. LEXIS 10

Syllabus

<p>1. In considering alleged errors in a charge, the charge must be considered as a whole, and not in detached portions.</p> <p>2. Whore 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.</p> <p>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 Ni-y-</p> <p>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.”</p> <p>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.</p> <p>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 after-wards fully and clearly charged by the judge.</p> <p>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 ho had never si