47 S.C.L. 66 | S.C. Ct. App. | 1860
The opinion is as follows:
It is the familiar course of the Courts of Appeal in this State to exercise more latitude of discretion as to the verdicts of juries concerning the execution of wills, than as to any other issue of fact, except perhaps as to questions of location. In these cases, important principles of law usually underlie the facts; and the jus disponendi is so sacred a right, that a single finding against the exercise of it in a particular case may be freely canvassed without disparaging the just powers of the sworn triers.
The Ordinary decreed that William Watkins had executed duly a last will, and on appeal to the Common Pleas the
The second issue of fact, as to the revocation of the will, did not distinctly arise, or at least may have been slurred by the jury, if they found the former issue as to proof of execution in favor of the appellants from the Ordinary. By the Act of 1789, 5 Stat. 107, no devise is revocable except by another will or writing, attested by three witnesses, declaring the revocation, or by the destruction or obliteration of the will by the testator himself or by some other person in his presence and by his direction and consent. Tire doctrine of Durant vs. Ashmore, 2 Rich. 184, is approved, that notwithstanding proof of execution of a will by a testator, if no will be found at his death, the usual presumption is that he revoked it himself or procured some person to destroy or obliterate it in his presence; but this presumption is rebutted if the existence of the will after the death of testator, or a previous destruction or obliteration of it outside of his presence, be proved. In the present case there is no positive proof that the will was destroyed in the presence of the testator, and there is evidence raising a strong probability that it was destroyed by his wife when he was absent.
We refrain from expressing any decisive conclusion of ours as to the facts, and we desire the case to go back with the least practical prejudice to either party; but we conclude that a new trial is justly demanded.
And it is ordered accordingly.
Motion granted.