
    
      EX PARTE JACKSON IN RE HUNTLEY v. HURSEY.
    Wires — -Probate Court — Appear—Issues—Practice.—It is proper practice to try de novo issue of will or no will in Circuit Court on appeal from probate court upon issues framed by Circuit Judge on notice.
    Before-J., Chesterfield, April, 1903.
    Affirmed.
    Proceeding in probate court to prove will in solemn form by Ex parte M. E. Jackson in re. will of Emily Huntley against Mary Allie Hursey et al. . From Circuit order, petitioner appeals.
    
      
      Messrs. Stevenson & Matheson, for appellant,
    cite: 16 S. C., 45; 11 Stat., 47; 33 S. C., 447; 35 S. C., 421; 4 S. C., 44; 132 Mass., 356; 17 S. C., 33.
    
      Messrs. W. P. Pollock and Edward Mclver, contra.
    The former cites: Code of 1902, 2493; 12 Rich. Eq., 203; 8 Rich., 90; 16 S. C., 45; 35 S. C., 417; 37 S. C., 348; 49 S. C., 159; 50 S. C., 95; 65 S. C., 558.
    July 7, 1903.
   The opinion of the Court was delivered l^

Mr. Ci-iiEE Justice Pope.

On the 23d day of January, 1903, upon the formal petition of M. F. Jackson, a proceeding was instituted for the probate in solemn form of the will of Emily Pluntley, deceased. M. F. Jackson was the acting executor of said will. A summons was issued from the court of probate for Chesterfield County, S. C., directed to Mary Allie Hursey and Isaac S. Huntlejq requiring them to answer the same. Subsequently, at the instance of the said Mary Allie Hursey, J. E. Hart and Josephine R. Hart were made parties to the proceeding. For cause, the said Mary Allie Hursey and Isaac S- Huntley showed that the will offered by the proponent was not the will of Emily Huntley, deceased, because when signed by her she was very old and infirm, both mentally and physically she was in extremis, and in such a condition she could easily be imposed upon and unduly influenced, and she, the said Mary Allie Hursey, alleged on information and belief that Emily S. Huntley was at the date of said will, and before and after said date, non compos mentis. That said Emily S. Huntley departed this life on the day of October, 1902. That the said Emily S. Huntley did execute a will on the 15th January, 1900, by which she made this respondent, Mary Allie Hursey, her executrix. That the respondent further alleges:

“That the said M. F. Jackson and Dr. J. E. Hart, both of whom are named as executors in the said pretended will, were acting as the agents of the said Mrs. Emily Huntley at and prior to the time said pretended will was executed, and the said J. E. Hart was also acting as the physician of the said Mrs. Emily Huntley, and continued so to act until her death. And they, the said M. E. Jackson and J. E. Hart, taking advantage of the weakness and infirmity of the said Mrs. Huntley and of their confidential relations towards her, as respondent is informed and believes, fraudulently conspired together to induce and did induce the said Mrs. Emily Huntley to sign the instrument now set up by the said M. E. Jackson as the last will and testament of said Mrs. Huntley, whereby it is claimed that she devised and bequeathed all her property, both real and personal, to the said M. E. Jackson and Mrs. Josephine Redfearn Hart, the wife of the said J. E, Hart.
“III. That the said pretended will set up by the said M. E. Jackson is fraudulent, null and void, and the will executed on the 15th day of January, A. D. 1900, whereby respondent is constituted the sole executrix, is the true last will and testament of the said Mrs. Emily Huntley, and your respondent offered same for probate after the said fraudulent will was admitted to probate, and it was declined, and your respondent now desires same probated.”

A trial was had in said court of probate, and the result thereof was that the probate judge of Chesterfield admitted the will to probate in solemn form on the 1st April, 1903; and on the 3d day of April, 1903, due notice of appeal was served therefrom, raising- issues as to the validity of the will, and on the 1th day of April, 1903, respondents served upon the attorneys for petitioner notice of motion for the Court of Common Pleas for an order requiring the whole issue to be tried by a jury, and proposed the questions raising the whole issue as set out hereafter. When the motion was heard, the presiding Judge of the Court of Common Pleas ordered the whole issue to be tried by a jury, and that the same be tried de novo.

Erom this order the petitioner has appealed upon the following grounds:

“I. The Court erred in holding that, under the Code of 1902, there is a trial de novo in the Circuit Court on appeal from the probate court in will contests.
“II. The Court erred in holding that the matter be tried de novo; whereas, it is submitted that the jurisdiction is purely appellate and confined to the record as made in the probate court.
“III. The Court erred in holding that the notice of motion for issues had been served within ten days after issue was joined.
“IV. The Court erred in holding that the ten days within which the notice of motion for issues must be served, runs from the date of the service of notice and grounds of appeal from the decision of the judge of probate; whereas, it should be within ten days from the joinder of issue by service of contestant’s answer to the petition in probate.
“V. The Court erred in granting .an order for trial de novo, when no notice of motion for the same was given.”

1. We will now examine these grounds of appeal in their order. We do not think there was any error on the part of the Circuit Judge as here complained of. Very certainly, section 60 of the Code of Procedure in the very language thereof authorizes a trial by jury of any issues of fact. The language of this section is as follows: “When such certified copy” (of the proceedings in the probate court from which an appeal has been taken) “shall have been filed in the Circuit Court, such Court shall proceed to the trial and determination of the question according to the rules of law; and if there shall be any question of fact or title to be decided, issue may be joined thereon under the directions of the Court, and a trial thereof had by jury.” This section of the Code of this State has been put in practice in a goodly number of cases in this State. It was first recognized (we mean this section of the Code) in the case of Stewart v. Blease, 4 S. C., 37, which was a case of dower. Chief Justice Moses, in effect, said, that when facts are involved in an appeal from the decision of the probate judge, an isssue may be joined in the Court of Common Pleas, when a trial will be had before a jury. In Prater v. Whittel, 16 S. C., 40, which was an appeal taken in a case of will or no will, this Court held that issues of fact shall be tried by a jury or issue framed by the Circuit Judge, though trial of such issue may be had before the Circuit Judge and a trial de novo had before a jury. This was a case of will or no will. So, too, in the case of Ex parte White, 33 S. C., 442, 12 S. E., 5, which was not a contest over will or no will, but on a right of and to administration, reference is made to the plan or procedure of a hearing before a Circuit Judge on an appeal from a decision by the probate court. So, too, in the case of Ex parte Apeler, 35 S. C., 417, 14 S. E., 931, when the right of a trial by jury of issues of fact was denied because of irregularities in framing such issues. In Ex parte Brock, 37 S. C., 348, 16 S. E., 38, the issues of fact were framed by the Circuit Judge and the trial of such issues were had before a jury. This was a case of will or no will. Chief Justice Mclver, in rendering this opinion, referred to what is now section 2493 of the Civil Code of South Carolina as controlling in the matter of whether an executor who' propounds the will on an appeal to the Circuit Court has the right to open and close in argument as well as to reply in evidence. This is a part of the act of the year 1839, 11 Stat. at Large, pp. 60-61. So in Kaufman v. Caughman, 49 S. C., 27 S. E., 16, the trial of issue of will or no will was tried before a jufy in an appeal from probate court. So in Gable v. Rauch, 50 S. C., 95, 27 S. E., 555, whch was an appeal from probate court, the issue of fact was tried before a jury in the Court of Common Pleas. This was' a case of will or no will, and this Court then recognized section 2493 of the Civil Code of this State as controlling. We do not see how there could be any limitations upon the trials of issues of fact before juries. It must of necessity be a trial of the whole testimony on these issues of fact. If so, how could there be any other trial than one de novo ? We overrule this ground of appeal.

2. The error into which the appellant has fallen here is in supposing that the trial de novo occurring in the Court of Common Pleas, where special issues of fact are referred to the trial by jury, covers anything more than what it imports, a trial of a special issue or issues of fact. The case of Bauskett v. Keitt, supra, shows the plan of procedure in such trials. This exception is overruled.

3. We think the issues are framed before the Circuit Judge upon notice. In this case the notice was served upon the respondents’ attorneys in the court of probate, on the dttji April, 1903, that an application would be made to the Circuit Judge for an order framing issues for trial before a jury, with a copy of said issues. This was done. This exception is overruled.

4. There is no force in this exception. The notice of issues was given co-equal in point of time with notice of appeal, just after the decision of the probate court herein. It could not have been dated from the time of service of answer in the court of probate. There was no issues at that time. The cases we have cited show that it is a practice as held in all the cases that the issue be framed by the Circuit Judge. This exception is overruled.

5. This exception must be overruled. There was no necessity for the Court de novo to1 be instructed in the notice to frame issues. Such words, in effect, were included in the notice given. The law makes the trial of issues de novo. This exception is overruled.

It is the judgment of this Court, that the order appealed from be affirmed, and the action is ordered to be remittttéd to the Circuit Court for trial.

Mr. Justice Jones

concurring. I concur. While the exact question raised in this appeal does not seem to have been expressly decided, courts and practitioners have heretofore generally assumed the law to be as announced in the opinion of the Chief Justice. The original act of 1839, on the subject of appeals from probate court, in which the question of will or no will was involved, contained the words, “shall be tried anew,” which, of course, authorized a trial de novo. These words have been omitted in subsequent legislation, which is now embodied in sec. 2493, Civil Code, 1902, which provides: “In all trials upon appeal from the probate court, in which the question of will or no will is in issue, the executor or party propounding the will shall be admitted to open the case and reply in evidence and argument.” No matter what the decision of the probate court is on appeal, the proponent of the will is still the actor, with right to open and reply in evidence and argument. This is wholly inconsistent with ordinary appeals based upon the record below, wherein the appellant is the actor and the appeal heard upon the record below, and can only be construed as authorizing a trial de novo.

Mr. Justice Woods

concurring. I concur. The act of 1839, which provides that on appeals as to probate of wills, “if an issue of fact shall be made up, the same shall be tried anew,” was repealed in 1872, and in the statute enacted to take its place the important words, “shall be tried anew,” were left out. Since this change a number of cases, which are cited by the Chief Justice, have been before this Court, and the right to a trial de novo has been recognized without question. In following this practice, the Court, no doubt, had in view the reason stated by the Chief Justice and Associate Justice Jones in this case.  