The opinion of the court was delivered by
Mr. Ciiiee Justice McIver.This was an action to recover possession of real estate, and as it was conceded that both parties claimed from a common source, George Rumph, sr., the real question was whether the plaintiff had established a superior title from that source. It appears that many years ago George Rumph, sr., died, certainly prior to the year 1853, and probably about the year 1848. The plaintiff claims that said George Rumph, sr., was his father, and that he duly made and executed his last will and testament, whereby he devised the land in'question to him and his brother, John Rumph, and if either died without lawful issue, living at the time of the death of such deceased son, then over to the survivor. The fact that said John Rumph had died before the commencement of this action, without lawful issue living at the time of his death, was not disputed, and hence the controversy was narrowed down to the inquiry whether George Rumph, sr., had left a will, and, if so, whether it contained the provision above stated; for if these two points were established, then it was clear that the plaintiff was entitled to recover, but if the plaintiff failed to establish both or either of these two points, then it was equally clear that the verdict must be for the defendants, who claim under the said John Rumph.
Under the charge of the Circuit Judge, which, with the grounds of appeal, should be embraced in the report of the case, the jury found a verdict in favor of the plaintiff, and judgment having been entered thereon, defendants appeal upon the several grounds set out in the record.
*4541 *453The first four grounds, in different forms, impute error to the *454Circuit Judge in receiving evidence touching the execution of the alleged will, and holding that the court had jurisdiction to take proof of the execution of the same; and in deciding that the probate of the will prior to 1858 was conclusive evidence of its execution and validity as to the real property thereby devised, and in admitting testimony as to the contents of such will, although it had not been admitted to probate since the act of 1858. Passing by the question of fact as to when the will was admitted to probate, about which the testimony is not entirely clear, and assuming, for the purposes of this discussion, that the alleged will was not admitted to probate after the passage of the act of 1858, we have to remark, first, that counsel for appellant seems to have misconceived the ruling of the Circuit Judge. We do not understand him as ruling that when a will disposing of real estate has been admitted to probate prior to the passage of the act of 1858, such probate is conclusive evidence of its execution and validity; but, on the contrary, he held that the act of 1858 only established a rule of evidence to be followed thereafter, and therefore when it was desired to prove a will as a link in the chain of title to real estate, which had not been admitted to probate since 1858, the rules of evidence existing prior to that act should be observed. If the will be lost or destroyed and the subscribing witnesses are alive and known, they should be called; but if they are dead of unknown, then the execution of the will may be established by other satisfactory testimony. Hence, as it appeared that all the records of Colleton County had been removed to Columbia during the recent war and there destroyed by the burning of that city by Sherman’s troops, secondary testimony as to the execution, probate, and contents of such alleged will was admitted. In this view, we do not think either of these exceptions could be sustained, for the reason that they are based upon a misapprehension of the judge’s rulings.
2 Be that as it may, however, the main object of these exceptions appears to be to raise the question as to the construction and effect of the act of 1858, and we will proceed to consider them in that light. The contention on the part of appellants, as we understand it, is that prior to the act of *4551858, the jurisdiction of the ordinary in taking probate of wills was confined to wills of personalty, and; therefore when it was necessary to prove a devise of realty, as a link in a chain of title to such realty in a contest in the Court of Common Pleas, it was necessary for the party claiming under such devise to prove the execution of the will de novo, and the probate by. the .ordinary did not render the will admissible in evidence. But when the act of 1858 was passed, the law in this respect was changed, so as not only to render the probate of a will of realty by the ordinary evidence of the execution of such will, but to declare that a devise of real estate could not be proved in any other way. Hence it is argued that until it appeared that the alleged will in this case had been admitted to probate since the passage of the act of 1858, no other evidence as to the execution or contents of such alleged will was admissible.
The question thus presented is very important and far-reaching in its effects, and is therefore entitled to the most careful consideration. If the view contended for by appellants be correct, then a person who has to trace his title to his land through a will of ancient date, may and probably would find himself in a very unfortunate position, for after a great lapse of time it would very likely be impossible for him to have had the will probated anew before the ordinary since the act of 1858; and if in a contest now arising he is prohibited from proving the devise in any other way,' he would lose his property by reason of an act of the legislature passed long after he had become invested with the title thereto. This would be giving to the act of 1858 not only retrospective operation, but such retrospective operation as would render it unconstitutional; for while the mere fact that an act operates retrospectively does not render it unconstitutional, yet if the effect of such operation is to divest vested rights of property, it then does become unconstitutional. McLure v. Melton, 24 S. C., 570-71, and the cases there cited, to which may be added B. & S. Railroad Company v. Nesbit, 10 How.. 395; Randall v. Kreiger, 23 Wall., 137; and the remarks of Johnston, Ch., in Finley v. Hunter, 2 Strob. Eq., at pages 214-5.
In addition to this, we do not think that the language used in *456the act of 1858 warrants such a construction as that contended for. The language, as found in the original’ statute (12 Statutes, 701), is: “That hereafter the probate in due form of law, by and before the proper ordinary, of all last wills and testaments, whether of real or personal property, or of both combined * * * shall be good, sufficient, and effectual in law, in the same manner and to the same extent as if the said last wills and testaments were exclusively of personal estate; and no devise of real estate shall be admitted as evidence in any cause until after probate before the ordinary.” The only practical alteration in this act by the amendatory act of 1865 (to be found in 13 Statutes at Large, at page 312), seems to be in the addition of the following words at the end of the section, “either in common form, or in due form of law.” The provisions of this act are embodied in sections 1887 and 2223 of the General Statutes of 1882. In the former, which is found in chapter 62, treating of “Letters Testamentary, • and proceedings on the Probate of Wills,” the language is : “The probate in due form of law, by and before the proper judge of probate, of any last will and testament, whether the same be of real property exclusively, or of real and personal property mixed, shall be good, sufficient, and effectual in law, in the same manner and to the same extent as if the said last will and testament were exclusively of personal estate.” In the latter, which is found in chapter 86, treating “Of Witnesses and Evidence,” the language is: “No devise of real estate shall be admitted as evidence in any cause until after probate before the judge of probate, either in common form or in due form of law.”
It seems to us that the manifest object of this legislation was to obliterate the distinction between the effect of the probate of a will devising real estate and one bequeathing personal property, in conformity to the growing disposition to destroy those distinctions, oftentimes refined and unreasonable, which were formerly recognized as existing between those species of property, and to declare that, after the passage of the act, the probate should have the same .effect upon both species of property; that while prior to the act of 1858, the probate by the ordinary only furnished evidence of the execution of the will so far as it contained bequests of personalty, and furnished no evidence so far as it con*457tained devises of realty, thereafter such probate would furnish the same evidence as to both species of property, both being put upon precisely the same footing. In view of this alteration in the law as to the effect of probate, the subsequent provision, originally found in the same section of the act of 1858, but now embodied in a separate section in the General Statutes, that no devise of real estate should be admissible in evidence until after the will in which it was contained has been admitted to probate by the proper officer, very naturally followed. The only effect and purpose of this legislation was to work an alteration in the rules of evidence, a matter entirely within the competency of the legislature, even though such legislation should operate retrospectively. Henry v. Henry, 31 S. C., at page 8, and the authorities there cited.
In view of the settled law, that while the probate of a will operated as proof of the execution thereof, so far as any bequest therein contained was concerned, and did not so operate, so far as a devise therein contained was concerned, the legislature, with a view to remedy the evil growing out of this distinction between these tw7o classes of property, which had its origin in circumstances no longer existing, declared, in effect, that the distinction should no longer be recognized, but that thereafter the probate of a will containing devises of real estate as well as bequests of personal property should have the same effect as to both classes of property. Hence, under the law, as it now stands, where a will, containing devises of real estate as well as bequests of personal property, has been admitted to probate by the proper officer, either before or after the passage of the act of 1858, such probate may be offered in evidence to prove the execution of the will in reference to such devises as well as to such bequests.
It is contended, however, by the counsel for appellants, that, prior to the act of 1858, the ordinary had no jurisdiction to take probate of a will of real estate only, and, therefore, if he undertook to do so, his act would be a nullity for want of jurisdiction ; and that the legislature has no power to supply this want of jurisdiction, so as to render an act valid which was invalid at the time it was done, for want of jurisdiction, by a subsequent act conferring the jurisdiction to do such act. Without undertaking now *458to consider how this might be in the case of a will disposing only of real estate (as to which tve do not at present care to express an opinion, as its proper consideration would protract this opinion to a much greater length than would be warrantable under the great pressure now bearing upon this court), it is sufficient to say that we are dealing here with a mixed will, and of the probate of such a will the ordinary unquestionably had jurisdiction. 1 Williams on Executors, page 238, 2nd Am. edit., cited with approval by Dunkin, Ch., in Tygart v. Peeples, 9 Rich. Eq., at page 49, though he quotes from a different edition of Williams. This is also recognized by the legislature, for by the act of 1823, now incorporated in the General Statutes as section 1874, it was provided that “in all actions” the exemplification of a will under the hand of the proper officer and seal of the court in which such will may have been admitted to probate, “shall be admissible in evidence in any of the courts of this State, whether the same may regard the title to real or personal property.” This necessarily implies that a will disposing of real as well as personal property could have been admitted to probate by the ordinary prior to the passage of the act of 1858. The counsel for appellants loses sight of the distinction between the power to do an act, and the effect of the exercise of such power. It is not a question of jurisdiction at all, but simply a question as to the effect of the exercise of such unquestionable jurisdiction. Prior to the act of 1858, the effect of this exercise of jurisdiction by the ordinary, in taking probate of this will, was not to authorize its introduction as evidence to establish a devise of real estate therein contained, whereas since that act it is admissible in evidence, because the legislature has so said.
Again, as it seems to us, the language used in the original act of 1858 strengthens the view which we have adopted. It will be observed that the language is, not that wills hereafter admitted to probate, &c., but that “hereafter the probate of wills,” &c., whether disposing of real or personal property, “shall be^good, sufficient, and effectual in law in the same manner and to the same extent” as if the same disposed of personal property. That, in our judgment, is the same as if the legislature had said, “hereafter” the effect of the probate of a will disposing of real estate should be *459the same as if it had disposed of personal estate only. And as the legislature must be supposed to have known that the effect of the probate of a will of personalty was to render it admissible in evidence as to such property, the conclusion is inevitable, that the legislature intended that, after the passing of the act, the probate of a will of realty should have the same effect — that is, render it admissible in evidence as to such property.
3 The fifth and sixth grounds impute error to the Circuit Judge in his charge to the jury as to the measure of proof required to establish the contents of a will which has been lost or destroyed. Most, if not all, of the cases cited by counsel for appellants to sustain these grounds seem to be cases in which the effort was to set up a lost will for probate, and in such cases it may be necessary that the testimony should be of the character which it is claimed that it should be (though we do not undertake to say so), as there the object is to have- the contents of the lost will spread upon the record, and hence fuller testimony may possibly be necessary than in a case like the present. Here the only question presented was whether a particular provision was in the will, and the plaintiff rested his whole case upon his ability to satisfy the jury that this particular provision was in the will. That was the single issue-of fact the jury were called upon to try, if they should first reach the conclusion that the will had been duly executed and admitted to probate, and we do not see why any greater degree of proof should be required to prove this single issue than any other issue of fact.
4 All of the remaining grounds of appeal, except the twelfth, complain of error on the part of the Circuit Judge in misstating or only partially stating the testimony to the jury, and in charging upon the facts. So far as the first branch of this objection, to wit, misstating the testimony or not stating it fully to the jury, is concerned, it raises no question of law of which this court can take cognizance. The proper mode of correcting such errors, if errors there be, is by bringing the matter to the attention of the judge at the time, or at most by a motion for a new trial. Kairson v. Puckhaber, 14 S. C., 627; State v. Jones, 21 Id., 596; State v. Davis, 27 Id., 613; Bowen v. Carolina &c. R. R. Co., 34 Id., 235.
*4605 As to the other branch of the objection, to wit, violating the constitutional provision as to charging on the facts, we think the charge speaks for itself. If there is anything in the charge which would even indicate what was the Circuit Judge’s opinion as to the issues of fact referred to the jury, we confess that we have been unable to discover it. The allegation, that the judge confined the attention of the jury to that portion of the testimony of the witness Stokes in which he stated that the provision of the will was “that the real estate was to go to his two boys, John and George, for the life-time of each; and in the event of the death of one without lawful issue living at the time of his death, it was to go to the survivor,” is not well founded. The judge very properly presented to the jury the issue of fact upon which alone the plaintiff rested his case, viz., whether the will contained those words ; but so far from confining the attention of the jury to any particular testimony bearing upon that issue, the jury were expressly instructed that they were to draw their conclusion as to this issue “from all the evidence in this case,” and unless it was proved to'their satisfaction by such evidence that the will did contain such words, then their verdict must be for defendants; for it being the duty of the plaintiff to establish his case, and he having, as he was bound to do, taken upon himself the burden of proving that the will did contain such language, if he failed to do so, he could not recover, and, therefore, it was immaterial for them to inquire what other language the will may have contained.
6 The only remaining ground, the 12th, imputes error to the judge in refusing to instruct the jury to find a special verdict, setting forth what the contents of the will were. If this had been an issue raised under proceedings to set up for probate a lost will, in order that it might be spread upon the records of the Court of Probate, such an instruction would have been proper. But where the issue was,' as in this case, whether the will contained a particular provision relied upon by plaintiff as constituting a link in his chain of title, such an instruction would have been not only entirely unnecessary, but actually improper, as tending to confuse the minds of the jury, by distracting their attention from what was material to what was *461wholly irrelevant to the issue which they were called upon to try. Neither party has a right to demand that the jury shall find a special verdict, but it is a matter resting in the discretion of the jury or of the Circuit Judge, and, as we have said, this case clearly was not a case for the exercise of such discretion, for it "turned upon a distinct issue of fact.
7 We have not deemed it neeessary to consider the question of estoppel arising from the declarations and acts of John Humph, under whom appellants claim, to which much attention was devoted in the argument, for the reason that no exception seems to have been taken (and we do not think could have been well taken) to the charge of the Circuit Judge in relation to this matter.
The judgment of this court is, that the judgment of the Circuit Court be affirmed.