58 S.C. 469 | S.C. | 1900
The opinion of the Court was delivered by
For reasons that will hereinafter appear, we deem it necessary to set out the “Case” in full, which is as follows: “J. S. Pinkhussohn, a resident of Charleston, S. C., on the 3d November, 1898, filed his petition in the probate court for Charleston County, alleging that William Neubert, a resident of Charleston, South Carolina, and of Gainesville, Florida, died intestate, leaving personal property in Charleston of the value of $25,000, and no relatives in the city; and the petitioner is a creditor, and praying letters of administration, etc. E. J. Burkhim, a resident of Gainesville, Florida, on the same day filed his petition, alleging that Wm. Neubert, of Gainesville, Florida, died 29th October, 1898, intestate, leaving a brother and sister in Germany ; the petitioner is a creditor; that deceased had $40, in a bank in Charleston, and perhaps other assets; that petitioner has applied for letters of administration upon this estate in Alachua County, Florida, and has received preliminary papers for the administration thereof. He asks letters of administration. Burkhim also filed a caveat against the granting of letters of administration to Pinkhussohn, because he denies that Pinkhussohn is a creditor, and as a stranger he cannot be appointed; that he, Burkhim, has been appointed administrator ad bona collegenda from the domiciliary court in Florida; that any administration in this county will be only ancillary, and that by granting him, Burkhim, the administration, it will prevent circumlocution and expense. Publication of citation was made in regular form for 17th November, 1898, and the parties appearing upon that day, at the request of Burkhim, it was postponed until the 16th December, 1898, when the case was heard and determined. The letters of administration to Pinkhussohn were issued to him on the 17th, reciting: ‘Whereas, Wm. Neubert, late of Gainesville, Florida, died intestate * * *
“On the 17th of April, 1899, the present .respondent moved before Judge Klugh, after due notice, to dismiss the appeal, but on that day his motion was refused; and he served notice of appeal to the Supreme Court, and finally abandoned his appeal.” (While we do not see that this paragraph has any relevancy whatever to any of the questions which this Court is called upon to determine, yet as we find it in the “Case,” which we proposed to set out in full, we did not feel at liberty to omit even this irrelevant paragraph.)
“The cause came before Judge Gage at the December term, 1899, and he made the following decree: This is an appeal from the decretal order of the probate court granting letters of administration to the respondent, J. S. Pinkhussohn. The order of the probate court sets forth the facts upon which his judgment was based, and after hearing counsel for appellant and respondent, I am satisfied, among other reasons, that the appellant, L. J. Burkhim, is not a proper person to be entrusted with the administration of the estate of William Neubert ; and that, therefore, the appeal herein be dismissed, and that the decretal order of the probate judge, dated December 16, 1898, be and is hereby sustained as the judgment of this Court, and that this decree be certified by the clerk of this Court to the said probate court for such other proceedings as may be necessary to enforce the same.”
From this judgment the said E. J. Burkhim gave due notice of appeal to this Court, basing the same upon the several exceptions set out in the record, a copy of which the reporter will insert in his report of this case.
6 The fifth, and only remaining exception is that Pinkhussohn was not a creditor of the intestate, which is based upon three grounds : 1st. That his claim was a pretext. 2d. Because he was allowed to establish his claim by his own oath, contrary to the provisions of sec. 400 of the Code. 3d. Because the probate judge refused to subpoena Miss Swan, a witness, to disprove said claim. The first of these grounds is clearly untenable, as there is no testimony whatever to sustain it, and is in direct conflict with the concurrent findings of the judge of probate and the Circuit Judge. The second ground is likewise untenable. In the first place, it does not appear that the objection to Pinkhussohn’s testimony was based upon the ground now insisted upon. But, waiving that, the general rule now, unquestionably, is, that interest does not disqualify, and the question is, whether the testimony objected to falls within any of the exceptions. The only one within which it can possibly be
The judgment of this Court is, that the judgment of the Circuit Court be affirmed.