
    
      Dr. James Durant and Elias Durant vs. Martha Ashmore and others.
    
    Although, it is convenient and usual to send cases in turn to the. juries, yet there is no law which renders it imperative on the Judge to do so, and he may, in his discretion, send a case to either jury.
    After jurors have been challenged, under the Act of 1841, and others drawn in their places, neither party can, under the Act, challenge the jurors so drawn.
    On the trial of a suggestion, on appeal from the Ordinary, to set up a lost or destroyed will, the declarations of the supposed testator, that he had no will, or that he had destroyed his will, are competent evidence for the defendants.
    The declarations of the plaintiffs in such suggestion, that they did not believe that the deceased left a will, are also competent evidence for the defendants.
    On the trial of such a suggestion, a subscribing witness to the will, who was named as one of its executors, but who had renounced his executorship, is a competent witness to prove the contents of the will, and, perhaps, to prove the execution.
    When a testator takes possession of his will and it cannot be found among his papers at his death, the law presumes that he destroyed it animo revocandi. This presumption, however, is one of fact merely, and may be rebutted by evidence shewing the existence of the will at his death.
    New trial ordered, on the ground of after discovered written evidence which might have affected a witness’ credit with the jury.
    
      Before ButleR, J. at Sumter, March, extra Term, 1845.
    This was a suggestion on appeal frrom the Ordinary, to try whether John Durant, who died in December, 1842, left certain testamentary papers, a will and codicil, unre-voked, or whether he died intestate. The plaintiffs in the suggestion were, Dr. James Durant, a natural son of the deceased, and Elias Durant, his half brother. The defendants were Martha Ashmore, a sister of the whole blood of the deceased, and three nephews, sons of a predeceased sister of the whole blood. The decision of the Ordinary was, that the deceased died intestate.
    On Tuesday evening, while Jury No. 1 was charged with a cause, and was then in their room deliberating on it, this case was called for trial — one or two verdicts had been taken from jury No. 2, whilst the other jury was out. , By the next morning, jury No. 1 had made up their verdict, and had returned with it into court.. When that verdict was read by the clerk, this case was called again, and the question was asked by the plaintiffs’ counsel, which jury is to try the case? The presiding Judge replied, jury No. 2, as jury No. 1 had returned the last verdict. The plaintiffs’ counsel then challenged, under the Act, the foreman, and he came off; the counsel for the defendants challenged, on their part, another juryman, which made two vacancies. The names of the supernumerary jurors were put in a hat, and two were drawn, when the plaintiffs’ counsel claimed the right to challenge one of them, when an objection being made, his Honor overruled the right of challenge, except for cause made.
    The papers which the plaintiffs had propounded before the Ordinary, as the will and codicil of John Durant, deceased, were then read. The first was a copy of the supposed will, which had been taken and kept by one James R. Law, who drew the original. The second contained the contents of the codicil," drawn up from memory by James R. Law. The will purported to have been executed in 1827. David Durant, (who died before John Durant) Elias Durant, Robert Durant, all half-brothers of John Durant, and James R. Law, were named as its executors.
    
      James R. Law was the first witness called for the plaintiffs. He was objected to as incompetent, on the ground that he was named as one of the executors of the will he was called on to establish. He renounced his executorship, and the question, as to his competency, was reserved. This witness testified to the execution of the will, and that the copy propounded was a correct copy of the original. That himself, David Durant, John Mc-Caskill, Redden Byrd, Dr- Alexander Williams, and, he thought, Alexander Chancey, were subscribing witnesses to the will. He further testified, that the will was left in his (witness’) possession until 1838, when the codicil was drawn and executed, at which time the deceased took both the will and codicil into his own possession. The codicil was executed in the presence of the witness, David Durant and Phill Clerry, who were the subscribing witnesses thereto.
    Redden Byrd, Alexander Chancey and Dr. Alexander Williams, the other subscribing witnesses who were alive, were also examined for the plaintiffs. Redden Byrd and Alexander Chancey testified to the execution of the will, but with some discrepancy as to who were the subscribing witnesses. Dr. Williams had no recollection that he was a subscribing witness.
    The plaintiffs then offered testimony which went to shew that on the night after the death of John Durant, John D. Ashmore, a son of the defendant, Martha Ash-more, burnt, at the residence of the deceased, three papers, two of which, the plaintiffs alleged, were the will and codicil of the deceased.
    On the part of the defendants, the witness who testified to the burning was positively contradicted, especially by John D. Ashmore ; and the repeated declarations of the deceased from the year 1840 nearly to the time of his death, either that he had no will, or that he had destroyed his will, were given in evidence. These declarations were objected to, but admitted by the court. The defendants further proved the declarations of the plaintiffs, made shortly after the death of John Durant, that they did not believe he had left a will. These declarations were also objected to, but admitted.
    A great deal of other testimony was introduced on both sides, but the above is all that it is deemed necessary to state, as the questions considered by the Court of Appeals have no relation to any other portions of the testimony.
    The presiding Judge, after examining all the circumstances for and against the presumption that the deceased had or had not destroyed the testamentary papers referred to, stated this general proposition; that where a testator had taken charge of his own will, and it could not be found among his papers, after his death, the presumption of the law was, that he had voluntarily destroyed it for the purpose of revocation. That it was a mere presumption, however, and might be rebutted, by circumstances going to shew that the will had been destroyed after his death. And here he brought to the notice of the jury the important issue which had been made by the evidence, and which was much discussed in argument, to wit:— Were there such circumstances and evidence in the case, as to satisfy them that the will of the deceased had been destroyed after his death? If so, the imputation could attach to no one so strongly as to John D. Ashmore. He carefully noted all the evidence on this question, on both sides, and concluded by saying, that either the papers had been voluntarily destroyed by John Durant, in his lifetime, (and if so, that destruction amounted to a revocation) or' they had been destroyed by his nephew after his death, and in that event there was no revocation; and that if the jury should come to the latter conclusion, they were-at liberty to set up the papers recited in the suggestion,provided they were satisfied that they were sustained by credible and satisfactory testimony.
    The jury found-for the defendants, thereby negativing' the testacy of the deceased.
    The plaintiffs appealed, on the following grounds.
    1. Because the case was referred to jury No. 2, instead of jury No. 1, against the motion of the plaintiffs, whereas jury Ño. 2 had been charged with the last preceding cause tried.'
    
      2. Because after one juror had been challenged by the plaintiffs and another juror substituted, the plaintiffs challenged a juror of the new pannel, but the court disallowed the said challenge, contrary to the Act of Assembly in such cases made.
    3. Because since the Act of 1824, no will, either of real or personal estate, is revocable but by some other will or codicil in writing, or other writing declaring the same, attested and subscribed by three witnesses, or by destroying or obliterating the same by the testator himself, or by some other person in his presence, and by his direction and consent; and no such revocation of the will of 1827, in any of the modes prescribed by the Act, was proved in this case to have been made.
    4. Because his Honor charged the jury, that unless a will once traced to the possession of the testator is found at his death, the presumption of law is, that he had revoked the same.
    5. Because the declarations of the testator, that he had no will, were admitted by the court, to prove that he had revoked his will, which was error.
    6. Because his Honor permitted the defendants to give in evidence the declarations of opinion, on the part of Elias and James Durant, two of the devisees, as to the existence of a will, notwithstanding objections of the plaintiffs.
    7. Because the evidence of the loss of the will, and the intention of the testator to die testate, was sufficient to rebut the presumption of revocation, if by law any such presumption arose from the non-production of the will.
    On the 28th August, 1845, whilst the case was pending in the Court of Appeals, John D. Ashmore, who had been examined as a witness for the defendants, and who on his voire dire had stated that he had no legal interest in the event of the suit, put upon record in the Register’s office for Sumter district, a deed,-whereby Martha Ashmore, one of the defendants, had, on the 16th of June 1844, voluntarily conveyed' to the said John D. Ashmore a valuable tract of land of the deceased, which was disposed of by the will which the plaintiffs were seeking to set up, to one John O. Durant, a nephew of the half blood of the deceased. The plaintiffs, on discovering that this paper had been recorded, gave notice that they would move the Court of Appeals for a new trial, on the ground that John D. Ashmore was interested in the event of the suit when he was examined as a witness; that the evidence as to his interest was unknown to them at the trial, and that they had not discovered it until after the said deed had been put on record.
    John D. Ashmore was,served with a copy of this notice of appeal, and in reply thereto made an affidavit, which was read in the Court of Appeals, in which he stated his reasons for believing at the time he was sworn that he had no interest in the event of the suit.
    
      Haynsworth and W. F. Desaussure, for the motion.
    It is important in the first place to inquire whether James R. Law was a competent witness for the plaintiffs, for if he was incompetent, it is unnecessary to send the case back, inasmuch as there is no other witness who can prove the contents of the will. They contended that, having renounced his executorship, he was competent, and on this point they cited and commented on Garland vs. Crow, 2 Bail. 24 ; Anstey vs. Dowsing, 2 Stra. 1253 ; Wyndham vs. Chetwynd, 1 Bur. 414; Helliard vs. Jennings, 1 Ld. Ray. 505; ¡Snelgrove vs. Snelgrove, 4 Des. 274; Wood-berry vs. Collins, 1 Des. 424 ; Dickon vs. Bates, 2 Bay. 448; Legare vs. Ashe, 1 Bay, 457; S. O. 1 Des. 458 ; and Taylor vs. Taylor, 1 Rich. 531.
    On the 3rd and 4th grounds, they contended that the question of revocation was to be decided by the terms of the statute of frauds, and that the ecclesiastical decisions had no application to the case. That a revocation could only be shewn by direct testimony that the will had been revoked in some one of the modes prescribed by the statute. This had not been done. Jackson vs. Betts, 9 Oowen, 208; Gowp. 87; 2 Shep. Touch. 411; 2 Mill, 334; 6 Cruise, 125 ; 3 Bur. 1491; 3 McC. 282.
    On the 5th ground they cited 4 Cowen, 483 ; 4 Eng. Ec. R. 126.
    On the last ground they contended that the witness, John D. Ashmore, was interested in the event of the suit when he was sworn, and that the court might, in its discretion, send the case back for a new trial on that ground. 6 Pick. 114 ; lb. 417 ; 3 Exch. R. 272; 3 Eq. R. 325 ; Acts 1839, p. 64; 9 Yes. 37; 1 Sch. and Lef. 407; 1 Hill 69; 2 Bail. 18 ; IN. and McC. 33; 1 Bail. 482; Harp. 267 ; 2 McC. 313.
    
      Preston and Moses, contra,
    cited, on the 1st ground, 2 Sp. 422, and on the 3d and 4th grounds, Betts vs. Jackson, 6 Wend. 173; 1 Wms. on ex’ors. 110 ;* Lillie vs. Lillie, 1 Ecc. R. 67 ; Colvin vs. Fraser, 4 lb. 113 ; 2Blac. R. 937 ; Swimb. 992; 13 Yes. 301; lb. 313; 4 Ecc. E. 150; 2 Dal. 286. On the 5th ground they cited Rob. on Wills, 46 ; 2 N. & McC. 272; Harp. 314 ; 3 McC. 82; 2 Phill. Ev. 196; and on the 6th ground, 2 Stark. Ev. 22 ; 7 T, R. 663; 1 Phill. Ev. 74.
    On the last ground they contended that the witness was not incompetent. That the ordinary had no jurisdiction as to wills of land, and that the proceedings, therefore, so far as the realty of the deceased was concerned, were void. That the witness’ interest was only in the lands, and inasmuch as the verdict was a nullity so far as they were concerned, the witness was not interested. :'Taylor vs. Taylor, 1 Rich. 533, 560, 569 ; Cro. Car. 396 ; 1 Bur. 429 ; Wood vs. Teage, 5 B. & C. 355. Supposing then that the witness was competent, can the court send the case back for a new trial on the ground that the evidence might have affected his credit with the jury ? No authority can be found for such a position, and the authorities to the contrary are numerous; see 2 Kinn. L. C. 268, where the authorities are collected.
   Curia, per O’Neall, J.

Two of the grounds of appeal are preliminary to all others. They present questions of practice merely.

1st. That the Judge was right in ordering the case to jury No. 2, is perfectly manifest from the fact stated in his report, that jury No. 1 had tried the only litigated case immediately preceding this, and that their verdict was the last handed to the clerk. In turn, jury No. 2 was next to be called to hear and determine a case. That while jury No. 1 was in their .room, one or two verdicts, by consent or without opposition, were taken from jury No. 2, was no reason why they should be exempted from their turn of laborious duty. Indeed, I know of no law which makes it imperative on the Judge to send cases in turn to the juries. It is convenient to do so. But the whole matter is entirely in the discretion of the Judge, and if he should have any reason to believe that either party had managed to send a case before a favorite jury, and that thereby justice would not be done, I have no doubt he might disappoint the trick by sending it to the other jury, as was once done by Judge Huger, in the case of Lyles vs. Lyles, at Winnsborough.

2d. After jurors have been challenged, and others have been drawn in their places, neither party can, under the Act of the Legislature, challege the jurors so drawn. The State vs. Kleinback, 2 Speers, 418.

The questions next to be considered are those which object to the evidence. The first of these is that which relates to the admissibility of the declarations of the testator, that he had no will. I have no doubt such declarations were admissible. For the issue was one of fact; had the testator a subsisting will at his death ? No one certainly better knew how this stood than himself, and such declarations would be directly in aid of the presumption of fact, arising from the circumstance that no last will was found at his death. But declarations shewing that the will was probably destroyed by the testator, are always admitted, as will be seen by referring to Lillie vs. Lillie, 5 Eccles. Rep. 67, where they were received, and considered of great importance by the Judge in delivering his opinion.

It is also objected, in the 6th ground, that declarations of opinion, on the part of Elias and James Durant, the plaintiifs, that the deceased had no will, were received. Although such declarations were of so little consequence that they ought not to have weighed a feather in the balance, yet I see no legal objection to their reception. They were from the parties to the cause, and might be used by the adverse party.

It is now necessary to consider whether James R. Law, named as one of the executors, be a competent witness. He has renounced his executorship, and is not, in any way, connected with the probate in solemn form of law. He is therefore entirely disinterested, and I confess, if I were at liberty to give utterance to my own opinion, I should hold he was competent to prove the fact of execution, as well as the contents. But as the case of Taylor vs. Taylor, 1 Rich. 531, in the opinion expressed by a part of the court, holds that he is, by being named executor, rendered incompetent to attest the will, I' for the present concede that he is incompetent to prove the fact of execution. But as there were at least three other competent witnesses to the excution of the will, it may stand upon their proof, or even upon the proof of Law, that such persons did witness the will (if he be competent to be sworn at all.) If he has no interest he may be sworn for any other purpose than the fact of execution. As to all other matters, there is no technical objection, such as that he must be competent at the time of attestation. Like all other witnesses, his competency must be judged of by his interest. That he has none, and never can have any, is apparent from his renunciation, which being “entered and recorded,” as directed in Swin. 865, note, Grimke Law of Ex. 164, binds him and justifies the Ordinary in granting letters testamentary to the other named executors.

The 3d, 4th and 7th grounds make the question, whether the jury were rightfully instructed by the Judge, as to the presumption of revocation. He says he stated “this general proposition, that where a testator had taken charge of his own will, and it could not be found among his papers after his death, the presumption of the law was that he had voluntarily destroyed it, for the purpose of revocation. That it was a mere presumption, however, and might be rebutted by circumstances going to shew that the will had been destroyed after his death.” That this, in words, was a little stronger than I think correct, is true, but I have no ■doubt the Judge really intended no inore than the very position which I maintain. Still, in a case like this, where the merest trifle may have produced the verdict, I think it necessary to qualify the proposition stated. That after the execution of a will has been proved, it can only be destroyed, by shewing another will revoking it, or by expressly proving burning or cancellation, is plainly and very properly declared not to be law by Colvin vs. Fraser, 4 Eng. Ecc. Rep. 113 ; Lillie vs. Lillie, and the well considered judgment of the Court of Errors of the State of New York, in the case of Betts vs. Jackson, 6 Wend. 173, overruling the same case decided in the Supreme Court, under the title Jackson vs. Betts, 9 Cow. 208. That a presumption of revocation arises from the fact that the will is not found, is beyond all doubt, and is fully sustained by the cases cited. But I maintain that this is not a presumption of law, it is a presumption of fact merely, and that was, I have no doubt, the idea of the Judge below, although he called it a presumption of law, as is often done by the Judges in the cases referred to; for he said it might be rebutted by facts shewing the existence. Judge Waties struck the true idea in the case of Legare and wife vs. Ashe, 1 Bay, 457, when he said, “the non production of it, (the will) is only a prima facie presumption that it was cancelled, and not a legal conclusion

The additional, ground discloses the fact, that John D. Ashmore, the person against whom the suspicion of destroying the will was directed, and who was sworn at the trial to disprove this suspicion, had, at the time when he was examined on his voire dire, in his possession a deed from his mother, conveying to him the home plantation of the deceased, and did not disclose that fact; and that since the trial he has put the deed on record, whereby, and not before, it became known to the appellants. This is not denied by any one — even the witness, Ashmore, admits the fact, and vindicates his competency, notwithstanding the fact, by a well sustained legal argument. It may be, and I think it is true, that, legally speaking, the title to the land of the deceased is not affected by the appeal from the Ordinary. The Ordinary’s jurisdiction is entirely of personalty, (unless it may be to partition intestate real estate under the value of $1000) and hence it may be, that a matter originating in a forum having no jurisdiction over land passing by devise, can never, no matter where eventually tried, conclude the interests of those who may claim. Still, where the will of personal and real estate depends upon the same ceremonies of attestation, and the will is established on appeal, by the judgment of the court of law, it will be very difficult, if not impossible, to successfully oppose its allowance as a devise. Hence, therefore, although Mr. Ashmore may have no legal interest in the event, which would exclude him, yet he certainly has a deep interest of profit or loss in the question, and if that fact had been known at the trial, it might, and possibly would, have shaken much his title to credit before the jury. The purity of trials at law is above all price. If, by concealing facts, law can be hoodwinked and justice perverted, a premium will be at once held out to -art and corruption. As far as the court can, it is our business to prevent this. It is true, that in general, after-discovered evidence is not admissible on a motion for new trial. But in many of the cases, and indeed in almost every one, the court, in refusing the motion, put the refusal upon the ground that the newly discovered evidence is oral; obviously pointing to the distinction, that written evidence discovered after the trial, where it was not in the power of the party to discover it before the trial, might be, as it was afterwards distinctly acknowledged to be, a ground for new trial. This will be seen by referring to Drayton vs. Thompson, 1 Bay, 261; The /State vs. Gordon, 1 Bay, 494; Faber vs. Baldrick, 3 Brev. 350; The State vs. Harding, 2 Bay, 267 ; Ecfert vs. Descoudres & Co. 1 Mill, 70. The case of Bogert & Kneeland vs. The Executors of Simons, 1 Mill, 143, recognised to its fullest extent the exception, that newly discovered written evidence, not within the power of the party, might be a ground for new trial. In that case Judge Nott said, “ Where the investigation of a case has led to the discovery of written evidence, which could not have been known before, or where, from circumstances not within the control of the party, the testimony could not, with the utmost diligence, have been discovered, and where it appears important to the merits of a cause, it may furnish a good ground for new trial.” In Glover vs. administrators of Miller, Harp. 267, it is said, “ the court being satisfied from the affidavit furnished in this case, that it was not in the power of the plaintiff to produce the receipt against part of the account, (on which the defendant claims a set-off) on the trial, are of opinion that a new trial should be granted.” These cases sufficiently vindicate the granting of a new trial, on the ground that the evidence to impeach the credit of Ashmore, is written, was then in his own possession, and unknown to the appellants. But the case of Levingsworth et al. ads. Fox, 2 Bay, 520, is almost, in every particular, the case before the court. In that case, a new trial was granted, on the ground that Rountree, a witness produced by the plaintiff on the trial, appeared, since the trial, to be deeply interested in the event of the suit, (having a claim to a part of the same land in dispute) although, in court, he swore upon his voire dire that he was not in the least interested in the cause. Adding the authority of that case to the others, and considering that Ashmore’s interest in the question is now apparent from written testimony, then in his possession, unknown to the appellants, not disclosed by him on his examination on his voire dire, and since the trial made public by him by being put on record, we think it is our duty to* order a new trial on this ground, even if it stood alone in the case. The motion for a new trial is granted.

Richardson, Evans and Wardlaw, JJ. concurred.

Butler, J.

Before I state the particular grounds upon which I consent to a new trial in this case, I will notice some explanatory remarks in the opinion of the court, on that part of my charge which touches on the subject of revocation, arising from presumption.

The law must frequently interpose its general principles, in the absence of express stipulations, or where there are no facts to authorize a conclusion from them.

It may be that this case is not one to which this apes juris may be resorted for the decision of the case ; but I adhere to the essential principles of my circuit opinion, as to the matter alluded to, and which will appear from the following statement.

A testator executes his will and delivers it to another. Afterwards, he resumes the possession of it himself; upon his death search is made among his papers, and no will can be found. There are no facts to shew what had become of the paper. In such case the question must be, shall the will be set up, or what shall the presumption be ? Of course the presumption of law, not a conclusion of law, or such a presumption as cannot be explained. But what shall be the legal inference ? I say it should be, that the testator had revoked his will, by a voluntary destruction of it. In this opinion I am fully sustained by the case from New York, and the cases quoted in the opinion of the court from the English Ecclesiastical reports.

The ground upon which I agree to a new trial is this— that John D. Ashmore was in possession of information, which the other party could not get, except from himself or his mother; and that when he was asked as to his interest in the case, he should have disclosed it. It was such as would have affected the nature of his evidence ; whilst it might not have excluded it, it would have shewn a strong temptation to establish the intestacy of the deceased.

The inclination of modern adjudications is to open the channels of evidence, and to let it depend more upon credibility than competency. In other words — to receive evidence to be decided on according to its weight, rather than exclude it altogether. But the credibility must frequently depend -on the disclosures of the witness himself. As where it appears that he had designedly, or from advisement, withheld that which was alone in his own possession, or in the possession of the party whose interest he is supporting, he should derive no advantage from it. No one shall be permitted to take advantage of his own wrong, for the purpose of obtaining an advantage in fact from it. Here the witness had a deed from his mother, the heir at law, for a very valuable tract of land, which had been devised to another in the alleged will. Who knew of the deed but himself and the maker of it ? The witnesses may or may not have known. Ashmore did know; and when asked the question, whether he had an interest, he should have disclosed the nature of his interest. At least, he should not have wilfully withheld it for the purpose of obtaining an advantage. Prom his own affidavit, he declined to answer or to say any thing of the deed, from a belief that it would not affect his competency. What he did was with cognizance and deliberation, and not from inadvertence. I do not say that the fact of the deed, if it had come out, would have affected his testimony in the estimation of the jury. I will not permit myself to form an opinion on that subject. It is enough to say that the jury ought to- have an opportunity of judging with all the facts connected with his credibility or temptation to consult his real interest in the case. And I am willing for a new trial, not upon the general ground of written testimony being discovered since the trial, but upon the ground mainly, that such evidence was suppressed, when it should have been disclosed, and which the other party could not well know without such disclosure.  