Reeves v. Booth

9 S.C.L. 334 | S.C. | 1818

The opinion of the Court was delivered by

Mr. Justice Gantt.

The authority quoted on the trial of the case, (Shepherd’s Touchstone, p. 411,) is in point to show that the parol proof ought to have been admitted. In Phillips’ Law of Evidence, p. 378, in a note of a case taken from Caine’s Reports, 363, it is said, that where the original will is shown to be lost, the next best evidence of its contents, as in the case of a deed, is admissible. From the combined force of these authorities, and the latitude allowed in all other cases, of admitting proof of the contents of a deed, or other instrument, to be gone into, when the original is proved to have been lost, I am of opinion the evidence offered in this case ought to have been received. The declarations of William Reeves on his death-bed, expressive of his belief of the existence of the wiH and that it had been left in the hands of John M^Reary Esq. who drew it, and was a subecrib™g witness thereto, if of sound mind at the time, would leave no doubt of the fact, that he had not cancelled it himself. If proof to the extent alleged could have been adduced on the trial, it would, in my opinion, have satisfactorily evinced the right of one of the defendants to the land devised to him; and the evidence having been offered, and rejected as inadmissible, I think a new trial ought to be had.

Chimbé, Colcock, Mott, Cheves, and Johnson, J. concurred.