
    
      Henry Goldsmith et al. v. Joseph Solomons et al.
    
    The fact of the presiding Judge having answered an inquiry of the foreman, (which he came in to make, after the jury had retired for consultation,) without communicating its purport to the parties, or their counsel, affords no ground for a new tiial.
    All matters necessary to the proper administration of justice in a Court, which are unregulated by precise rules, are within the discretion of the Judge.
    
      Before Mr. Justice O’Neall,at Charleston, May Term^lSM.
    
    APPEAL FROM THE ORDINARY, REFUSING TO SET UP'THE SUPPOSED WILL OF GEORGE LYON, DECEASED, ALLEGED TO BE LOST.
    George Lyon, many years before his death, and while his wife lived with him, made a will, by which he bequeathed to her all his estate, and deposited it in the Ordinary’s office, where it still is. Afterwards, she eloped from his bed with one Esdra, and, as he alleged, robbed him of a large amount: she never afterwards lived with him. His sisters lived with him for some time (say three years); two years before his death they left him, and returned to New York. He complained of the expense attending their residence with him, and spoke unkindly of them. In November, 1842, he made another will, witnessed by John A. Gyles, William A. Hayne, and James W. May. A rough draft, supposed to he a copy, and the recollection of the witness, May, very nearly corresponded, by which it would seem the appellants were executors. It contains a singular requisition — to wit, that the will should be read over to the testator before he signs it. It contains directions for a funeral, a grave-stone or monument, some legacies, (particularly one to a Jewish Synagogue, as Mr. May supposed, at St. Thomas, of $200,) the residue is bequeathed to the appellants and their sisters, who are no relations of the deceased. ■
    This will was deposited in the Ordinary’s office, by Henry Goldsmith, the 15th April, 1843. On the 29th of February, 1844, George Lyon called and took the said will out of the Ordinary’s office. On the 12th of June, 1844, he was murdered — that is, he.was on that morning found dead in his house on -East-Bay, with his throat cut. A show-case in which he kept his jewelry was rifled^ an iron safe which stood in the shop was open, and such'was the trick of the lock, that when locked, no one of the inquest could unlock it. Every thing was taken out of it, except a tin box without a lid. All the jewelry, of which tíre deceased had a stock, was gone. He was a watch-maker: there were no watch-books found except an old one. The appellants claimed to be executors at the time of the Coroner’s inquest. No will being found, the Ordinary took possession of his effects. Subsequently, application was made both by the widow, and also the brothers and sisters. The Ordinary granted administration to the nominee of the widow, Joseph Solomons. Subsequently, the appellants propounded the will alleged to be lost, the execution and contents of which were proved, as already stated. The Ordinary refused to set up the will, on the ground that there was no evidence to satisfy him that it had not been revoked by the testator.
    The testimony before him, and before the Circuit Judge, as to the existence of the will at the testator’s death, was in substance as follows: Frederick Schouboe proved a conversation with the deceased not a month before his death, in which he said his property was secure — he had given it to the appellants and their sisters. He said he thought they were his friends, though he might be mistaken. Thomas McMillan proved that, after the execution of the will, the deceased said to him he was surprised Joseph had gone to the country without calling to see him, after what he had done for him. Andrew Montgomery proved that there was great intimacy and friendship between the deceased and the Goldsmiths, and that he expressed little or no regard for his relations. That six weeks before his death, on being solicited to provide for his sisters, he replied, “ wrnph.” About that time he heard deceased ask Henry if the papers were finished. Henry said they were nearly so, J. W. Cheesborough proved that he saw and conversed with him in his shop between 1st of March and 1st of May, 1844; deceased told him he had a will, and from his gestures, he inferred it was in the iron safe.
    
      John Dawson proved a conversation with deceased four or five years ago, at the circumcision of Sampson’s child,, in which he said all he had would go to the boys (the appellants). A week or so before his death, an- awning had been put up before his door; the witness suggested to him how easy it would be for a robber to ascend the posts,, enter and; rob him. He said there was no danger — his property was secured. Angus Stewart proved that in May, before Lyon’s death, the deceased spoke of his will. The witness asked him what he was going to do- with his money: he said he had his will — he was going to give the Goldsmiths something. Mr. Ottolengifi proved that there was no Synagogue, in St. Thomas'there- was one in St. Domingo.
    Against the existence of the will, the following evidence was given :
    John S. Jones proved that he knew the deceased for twenty years before his death. That being about to visit New York, on the 2d of June, 1844,. he called on the deceased, at his own shop, and turned his attention to his sisters. The deceased told him he had no will: he said he would not forget his sisters when he came to make his will; he would visit them, he said, in the course of that summer. There was, this witness said, no misunderstanding between the deceased and his sisters: his affection for them was, .he said, uniform. In conversation with this witness, the deceased said he would not trust the Goldsmiths for 6£ cents. He (this witness) said the Goldsmiths had been in the habit of visiting deceased freely for about six years. Capt. Porter proved that he is a mariner; commands the steamer Peedee. He at one time commanded vessels running from Charleston to New York. He said he knew George Lyon since ’36. He talked with him last of February or 1st of March, 1844. He then commanded a vessel bound for New York: he told him he was going to. New York: he asked him if he would like to see his sisters'? He (Lyon) said he would see them that summer. He told him either that he had taken, or would take, his will out of the Ordinary's office, and either that he had destroyed it, or that he would, destroy it. The' next will, Lyon said, would be in favor of his sisters.
    In his further examination, he stated that Lyon told him he had not treated his sisters well, on account of the Goldsmiths. They, (the Goldsmiths) Lyon .said, were constantly telling him the ladies were extravagant: he. could board them cheaper at the North. He spoke of the Goldsmiths, not in good consideration- — he said he was living like a dog. He said the Goldsmiths did not care a d — -n for him, but his property. He.said they would come to his house, drink his brandy: if it were not for them, his sisters would be with him now, and he would be comfortable. On his cross-examination, he said Lyon said the Goldsmiths only wanted his property: they were d-d rascals. Witness told him he had heard he had made his will in their favor. He said yes, by their inducement-^-but he had found out his mistake, and that he had taken or would take his will out of the office, •and had destroyed it, or would destroy it. In November, ’43, he first heard Lyon curse the Goldsmiths: they were not quite so familiar then as before.
    This is all the testimony, unless it be that a letter of John S. Jones was read as part of the evidence taken before the Ordinary, in which he states what he afterwards testified to on his examination, and bitterly denounced the Goldsmiths •in reference to a letter which one of them (Henry) had written to his- (Lyon’s) sisters. It may be that, as is stated in the first ground, the appellants wished to give some evidence of the contents of the letter of Henry Goldsmith, which was refused, both because the letter itself was not produced, and if in possession of the opposite party there was no notice to produce it, and also because it was his own declaration: but the presiding Judge had no note of any offer of such testimony!
    ■ The jury were instructed to inquire — -1st, As to the execution and contents of the alleged will. The -legal requisitions were fully stated and explained. They were then told, if satisfied as to the execution and contents, to inquire — 2d, Was it destroyed in his lifetime, against his will, or was it existing at his death, and destroyed then or after? They were told that the fact, that the will could not be found at the testator’s death, raised a presumption of fact that he had himself revoked it, by destroying it. This, however, they were told, was a mere presumption, which might be rebutted by other fa'cts.
    The testimony was carefully arrayed and placed before the jury. They retired, and after being out a few moments, Mr. Brodie, the Foreman, came in, and asked -the Judge if they found against the will, how they should find? His Honor told him how the verdict should be found. To this it is that the second ground of appeal refers.
    The jury found against the will, and the appellants appealed, on the annexed three grounds:
    1st. Because his Honor refused to permit the letters of Henry Goldsmith, written to the sisters and next of kin of the deceased, and in possession of opposite counsel, to be given in evidence on part of plaintiffs, or secondary evidence of their contents, if not produced, although expressly referred to in the letter of John S. Jones, given in evidence by defendants.
    2d. Because, it is respectfully submitted, his Honor held a conversation with, or made a communication in Court to the Foreman of the jury, after the jury had retired for deliberation on the case, not heard by and not communicated to the plaintiffs or their counsel.
    3d. Because the evidence clearly established that the will of Lyon, in favor of plaintiffs and their sisters, was legally executed and deposited by testator in an iron chest, which was robbed simultaneously with his murder, and the verdict was therefore, and in other respects, contrary to law and evidence. HENRY GOLDSMITH, and
    JOS. H. GOLDSMITH,
    
      In person.
    
    Yf.adon appeared for the motion,
    and cited a case from 1 Pickering, 337, in which a new trial, he said, had been granted on a ground similar to the second ground of appeal taken in this case.
   O’Neall, J.

delivered the opinion of the Court.

In this case, the Court is entirely satisfied with the result of the case below.

No other comment would be made on the case, was it not for the second ground of appeal. That demands, however, a word or two. The impropriety of such a ground is seen in the fact that the appellants’ learned counsel refused to sign the grounds of appeal. Still, if it were to be argued by attorneys here, it ought to have had the benefit of their names as-a sanction.

The administration of justice, in a Court, necessarily demands a large share of discretion, unregulated by precise rules, from the presiding Judge. His choice to the position which he holds, his continuance in it, his learning, experience, and impartiality, are supposed to be guards enough against its improper exercise.

The intercourse between the jury and the bench is, in many respects, very confidential. Often the communications from-the jury are of that kind which ought not to be communicated to the bar. The case before us is an illustration of that. To have communicated the foreman’s inquiry would have been to announce the result of the case before the verdict was published. This is so irregular that it would have furnished a much better ground of appeal than that under consideration. So, too, the foreman ^of the jury often says to the Judge, “We are divided, ten to'two; we can’t agree, what are we to do ?” Is that to be communicated to the counsel 1 Certainly not.

There can be but one proper rule upon the subject: that is, to trust all these matters to the discretion of the Judge. When it is proper that the attention of the bar should be called to the doubts of the jury, it will be done. From the first organization of our judicial system we have gone on, without difficulty, under this discretionary adminitetration. The confidence of the bar in the bench has prevented any thing, in the shape of suspicion, from doubting the propriety of the administration of justice daily administered in their presence.

The case from Pickering, 1st vol. 337, Sargent v. Roberts et al., seems to have given occasion to the 2d ground. That case is, I think, of very questionable propriety. For even to hold after the jury is sent out, and a constable sworn in charge of them, and the Court is adjourned over to the next day, that the jury should have no communication with them, is, I think, pushing judicial coyness to the very verge of mere prudery. Honesty in every thing goes upon the motto, “think no evil.” Whenever a man begins to thmk that he is suspected of dishonesty, there is great danger of his being dishonest. In this State we never have pursued any such practice. Here we have been willing to leave it where it should be left — to the discretion of the Judge.

But that case from Pickering is not at all like this. There the communication was after adjournment — here it was se-dente curia — there it was a written charge. Here it was merely a direction as to the form of the verdict on which the jury had already agreed. The motion is dismissed.

Richardson, J. Evans, J. Wardlaw, J. Frost, J. and Withers, J. concurred.

Motion refused.  