Rumph v. Hiott

Citations

• 35 S.C. 444
• 15 S.E. 235
• 1892 S.C. LEXIS 203

Syllabus

<p>1. Exceptions in this case, alleging error in the rulings of the Circuit Judge as to the proof necessary to establish a lost will in action for recovery of real property, were based upon a misconception of the judge’s charge.</p> <p>2. Proof of Devise — Vested Rights — Retrospective Statute. — The act of 1858 (12 Stat., 701; Gen. Stat., 1887, 2223) provides: “That hereafter the probate by and before the proper ordinary, of all last wills and testaments, whether of real or personal property, or both combined, shall be good, sufficient, and effectual in law in the same manner and to the same extent as if the said last wills and testaments were exclusively of personal estate; and no devise of real estate shall be admitted in any cause until after probate before the ordinary.” Held, in action since 1858 to recover real property devised under a mixed will disposing of both real and personal property, that its probate, made before the ordinary prior to the act of 1858, was sufficient as evidence of the devise contained in said will; that the statute did not require the probate to be riiade anew after 1858, as such a requirement might have divested vested rights, and therefore would bo unconstitutional. The purpose of the statute was to obliterate all distinction between the effect of a probate as to bequests of personal property and devises of real estate, and to work an alteration in the rules of evidence applicable to the proof of devises, past and future, in actions thereafter tried.</p> <p>3. Lost Will — Proof of Devise. — Whatever may be the quantum of proof necessary to establish the contents of a lost will when offered for probate, in action to recover real property devised under a will which had been destroyed after its probate, no greater degree of proof is required to establish the terms of a devise therein contained than is required to establish other issues.</p> <p>4. Charging Juries. — Error of the trial judge in misstating testimony, or in not stating it