Bell v. Smith

ROY, C.

This is a suit to quiet title to the north-half of section 23, township 26, range 6 east, in Butler County. There was a judgment for the defendants, and plaintiffs have appealed.

William B. Dorn owned the land at the time of his death in 1876. He left a will by which he devised the land to his wife during her life with the remainder on her death to her children. The plaintiffs are his surviving children and the heirs of those who were dead. The widow is still living. William B. Dorn, the testator, was ’at the time of his death a resident of South Carolina. The will was never proved in this State. It was proved in South Carolina as follows:

*623 The State of South Carolina

Edgefield County

Probate of Wm. B. Dorn’s Will.

By L. Charlton, Esq., Judge of Probate of said County.

Personally appeared before me, Horace Parker, who being duly sworn, maketh oath and says that he saw Wm. B. Dorn, sign, seal, publish, pronounce and declare the annexed instrument of writing bearing date the 5th day of September Anno Domini one thousand eight hundred and seventy-six to be and contain his last will and testament; that he, the said Wm. B. Dorn, was then of sound and disposing mind, memory and understanding, according to the test of deponent’s knowledge and belief and that H. A. Gray, S. H. Manget and myself at the request of the testator and in his presence, and in the presence of each other, witnessed the due execution thereof. Sworn to and subscribed before me, this the twentieth day of January A. D. 1877.

H. Parker,

L. Charlton, Judge of Probate, E. C. (L. S.)

“State of South Carolina )

In Probate Court.

County of Edgefield J

“Whereas, the last will and testament of Wm. B. Dorn, of above county and State, as dated the 5th day of September, 1876, and recorded January, 1877, by Mr. H. Parker, one of the subscribing witnesses thereto, in the presence, or before Judge L. Charlton, Probate Judge, in and for the county of Edgefield, State aforesaid, at said time;

“And Whereas, I, W. T. Kinnaird, as probate Judge in and for said county and State at this time (May 15th, 1918) have had the signature of said H. Parker, the witness aforesaid, duly attested and sworn to by Mr. A. S. Tompkins, an attorney of this county and town, as matter of precaution, said witness being now dead;

“And Whereas, said Judge of Probate E. Charlton (who is als.o dead) omitted or failed, for some unknown cause, to issue, or file his decretal order in connection with the proceedings of the probation by him, of said will, ordering and decreeing said probated will to be admitted to probate in common form as required by law.

“Now, Know All Men By These Presents that, 1, W. T. Kinnaird, as probate judge in and for the county of Edgefield, State of South Carolina, at the present time, upon the consideration of the testimony above set forth and being fully satisfied with the sufficiency thereof,

“Do hereby adjudge and decree that the said instrument in writing purporting to be the last will and testament of said Wm. B. Dorn, be now admitted to probate in common form.

“It Is So Ordered. It is further ordered that this instrument in writing, ordering the will of said Wm. B. Dorn admitted to *624 probate in common form,' be recorded in the proper records of the county.

“Witness my hand and seal May 15th, 1913. (L. S.) Ordered this the 15th day, of May, A. D. 1913. W. T. Kinnaird,

Judge of Probate of Edgefield County, South Carolina.” (Duly Certified).

No taxes were ever paid on the land.by the plaintiffs or those under whom they claim after death of the testator.

The defendant claims title through deeds under execution on judgment for taxes.

No one was ever in actual possession of the land until the defendant enclosed it with a fence in 1907, since which time defendant has been in the actual, adverse possession of the land, claiming to own the same absolutely, paying taxes thereon.

When the will above mentioned was offered in evidence by the plaintiffs, the defendant objected to it on the ground that it had not been legally and properly proved, as it had been proved by only one of the three subscribing witnesses. The objection was overruled and the will together with the proof was read in evidence. The court adjudged that the plaintiffs had no right, title or interest in the land and adjudged, in accordance with the prayer for cross:relief in the answer, that the defendant was the absolute owner of the land.

Proof of Will.

I. Though the will was admitted in evidence, the trial court in rendering its judgment for the defendant, evidently did so on the theory that the will was not properly proved.

Section 567 of the Revised Statutes provides:

“Any person owning real or personal estate in this State may devise or bequeath such property by last will, executed and proved, if real estate be devised, according to the laws of this State, or if personal estate be bequeathed, according to the laws of this State or of the country, State or territory in which the will shall be made.”

Appellants contend that the will in question has been proved in accordance with the requirements of the *625 laws of this State. They cite us to Craig v. Craig, 156 Mo. 358 , where it is said: “But the law does not make the proof of the will dependent alone on the testimony of the subscribing witnesses or render their testimony absolutely essential.” They overlook the next paragraph in that opinion where it is said: “No court in which a will is offered for probate would be satisfied without having the evidence of the subscribing witness, if attainable, unless the proponents show good reason for not producing them, but when produced their evidence is not conclusive, and it is not the only evidence upon which a will can be established.”

Whether there is any difference in that respect between the formal ex parte proof of a will and the proof in a suit to contest a will we will not now undertake to say. But we do hold that proof by only one subscribing witness, without any showing as to what has become of the other witnesses, is not a proof of the will in accordance with Sections 550, 551, 552, 553 and 554 of our Revised Statutes. This exact question has never heretofore been before this court, but we do not think that the sections of the statute above mentioned can be so construed as to validate the proof of the will as it was made in this case.

Limitations.

II. As there is no valid will in the case, the plain-are n0^ remaindermen under that will. Their estate was one in prcesenti, and they are barred by Section 1884 of our Revised Statutes, which is commonly called the thirty-year Statute of Limitations.

The judgment is affirmed.

White, C., concurs. PER CURIAM:

The foregoing opinion of Roy, C., is adopted as the opinion of the court.

All of the judges concur, Faris, J., in result.