76 S.E. 616 | S.C. | 1912
December 5, 1912. The opinion of the Court was delivered by This was a proceeding to prove the will of Mrs. E.M. Briggs in solemn form. The probate judge found against the will and refused to admit the paper to probate. The proponents of the will appealed to the Circuit Court and gave notice of issues to be submitted to a jury. The order was made submitting to the jury the question proposed, which was as follows:
"Is the paper propounded as the last will of Mrs. E.M. Briggs her will, and was it executed with all the requirements of law." From this order the contestants appealed to this Court upon four exceptions.
First Exception. "That his Honor erred, it is respectfully submitted, in deciding that he was without discretion upon an appeal from a finding of no will by the probate court, but held that as a matter of right the proponents of the will were entitled to a trial de novo before a jury, to decide the facts entirely irrespective of what evidence had been presented on the trial in the probate court."
It will be seen from reading the order (let the order be reported) that there is nothing in the order from which it is to be inferred that the order was granted as a right and not as a matter of discretion. We can not, therefore, hold that his Honor erred, even if the matter was discretionary, and this exception is overruled.
Second Exception. "That his Honor erred, it is respectfully submitted, in not hearing the appeal without a jury." *271
Even if the granting of the order was within the discretion of the Circuit Judge no abuse of discretion has been shown. This exception is overruled.
Third Exception. "That his Honor, the Circuit Judge, erred, it is respectfully submitted, in ordering that the question, `Is the paper propounded as the last will of Mrs. E.M. Briggs her will and was it executed with all the requirements of law?' be submitted to a jury as an issue of fact; whereas, it is respectfully submitted, that there is no issue of fact involved, as the testimony is conclusive that the instrument was attested out of the presence of the said E.M. Briggs by the subscribing witnesses, and only questions of law are presented by the appeal, and hence should be heard by the Court without a jury."
The trial in the Circuit Court on appeal where issues are submitted to a jury is a trial de novo.
Prater v. Whittle,
The evidence, therefore, taken in the probate court can not determine whether the questions to be determined in the Circuit Court will be questions of law or fact. This exception is overruled.
Fourth Exception. "That his Honor erred, it is respectfully submitted, in holding under the facts in this case that the proponents in this case were entitled to a jury trial of the issues as to whether there was a will or no will."
This exception is based upon a misapprehension of the terms of the order and is overruled, for the reason stated under the first exception.
The judgment of this Court is that the order appealed from is affirmed. *272
