January 26, 1920. The opinion of the Court was delivered by The case states:
"John W. Wood, late a resident of Lexington county, died in the town of New Brookland about December 8, 1917. On December 15, 1917, M.E. Awtrey presented to the probate Court a paper purporting to be the will of John W. Wood, offering the same for probate The same was probated in common form.
"On January 9, 1918, Sallie W. Wood, widow of John W. Wood, filed notice requesting this Court to require the executor to file a petition asking that the will be probated in solemn form. This proceeding was had in usual form in the probate Court, and, after the evidence was taken, the probate Judge, on January 17, 1919, filed a decree admitting the will to probate in solemn form.
"Thereupon, respondent herein gave notice of intention to appeal to the Circuit Court with the grounds thereof, and the case was tried de novo before the Court of Common Pleas for Lexington county and a jury, at the March term of Court, 1919."
The jury found against the will, and its finding was confirmed by the trial Judge.
1. The first six exceptions complained of error in the admission and exclusion of evidence. The charge is fraud, and where the charge is fraud, much latitude is allowed to the discretion of the trial Judge. We cannot say that he abused his discretion, and these exceptions are overruled. It would be manifestly unfair to *Page 314 appellant for this Court to discuss the relevancy of the testimony, where a new trial must be ordered, as here. It is enough to say that the admission and exclusion of the testimony was within the discretion of the trial Judge and there was no abuse of discretion.
2. The seventh exception complains of error in allowing the contestants to introduce in evidence a transcript of the evidence taken in the probate Court, for the purpose of contradicting the witnesses for the proponents.
The record shows that the objection to the testimony was not clearly stated. One of the attorneys said: "We admit that is the original transcript of the evidence taken in the probate Court by a stenographer, but we submit that they cannot offer that to contradict a witness."
Another attorney for proponents said: "The point we are making now is that testimony given in one hearing is not competent in another hearing; that is our objection."
If the objection was that taken by the last counsel, then the objection cannot be sustained. It makes no difference whether the statement was made in that trial or any other, or whether it was made in or out of Court; if proper grounds had been laid for the contradiction, then the evidence was admissible. If, however, the objection was that the record did not prove itself and that it was necessary to put on the stand the stenographer who took the testimony, to prove that it was correct, then the objection should have been sustained and the testimony excluded until the stenographer had first testified in regard to it. The testimony was admitted "only for what it was worth," and his Honor further said: "It is a matter for that jury to say in the light of the testimony and explanation of it what they believe."
It was not taken as conclusive. *Page 315
3. The eighth exception complains of error in refusing to direct a verdict in favor of the will. This exception is overruled for the reason that there was evidence to carry the case to the jury.
4. The ninth exception complains of error in adding to the third request to charge, and others, certain words: "Proponent's third request is: `(3) And so under the laws of this State, any person owning property in this State who has attained the age of maturity has a right to make a will disposing of his property as he sees fit, and if the same is properly executed and he so provides in the will, he may thereby cut his wife and children out of any or all of his property to take effect after his death.' I charge you that with this addition: Provided that this is not done in fraud of another or in fraud of such wife or children."
This charge was at least misleading. In Prater v. Whittle,16 S.C. 46, we read:
"1 Wms. Ex. 185; Jolliffe v. Fanning Phillips, 10 Rich. 200. In this case Judge Withers said: `If the paper be duly executed by one competent, agreeably to the forms prescribed and in the presence of the requisite number of credible witnesses, and contain the revocation of all prior wills and the appointment of an executor (as the testamentary paper before us does), and be silent in fact or for want of validity as to all other matters, it is a will, and must be admitted to probate accordingly.'"
If the charge was intended to refer to an alleged fraud practiced on Mr. Wood, then the charge was correct.
If the charge was intended to refer to an alleged fraud practiced by Mr. Wood on Mrs. Wood, then the charge was error, because that question cannot be determined in this proceeding. This exception is sustained, because the charge is misleading.
The judgment is reversed, and a new trial ordered. *Page 316
MR. CHIEF JUSTICE GARY and MESSRS. JUSTICES HYDRICK and WATTS concur.