Williams v. Newton

68 S.E. 693, 86 S.C. 248, 1910 S.C. LEXIS 78

Opinion

The opinion of the Court was delivered by

Mr. Justice Gary.

The complaint alleges two causes of action — one for dower, and the other to have the will of the testator declared a nullity, in so far as it attempts to give to his illetigimate son more than one-fourth' of his real estate.

The facts are fully stated in the decree of his Honor, the Circuit Judge, which will be incorporated in the report of the case. The defendant appealed upon exceptions which will also be reported.

1 The first, second, third, fourth, fifth, sixth and tenth exceptions’ can not be sustained, for the reason that it is not only incumbent upon the appellant to show that the rulings were erroneous, but also that they materially affected his rights.

Whether the language of which the appellant complains is struck out or allowed to remain, the result would not be changed:. It can not, therefore, be successfully contended that the remarks of the Circuit Judge were prejudicial to the rights of the appellant.

2 The seventh and eight exceptions are overruled, for the reasons stated in the decree.

The ninth exception was not argued', therefore it will not be considered.

3 The eleventh exception can not be sustained, as there is nothing in the record showing that the envelope containing the depositions, was not sealed and properly endorsed.

It is true the appellant’s attorneys made the objection to the admissibility of the depositions on said grounds, but the respondent’s attorneys contended that they were properly sealed and endorsed; the referee and Circuit Judge so ruled, and the appellant has failed to' show that the ruling was erroneous.

4 The twelfth exception must be overruled on the ground it appears from the record, that the referee sustained all objections to testimony, tending to prove the iliegitimacy of the son by general reputation; also, that he ruled out all declarations of the mother, tending to show that Prank Quick was a bastard. There is nothing-in the record showing that the Circuit Judge reversed the rulings of the referee in this respect. “In the absence of any showing to the contrary, it is to be presumed that the Circuit Judge, in reaching his conclusions, discarded all incompetent testimony.” Williams v. Halford, 73 S. C., 119, 53 S. E., 88. Furthermore, not only were there circumstances tending to prove that Prank Quick was illegitimate, but there was likewise positive testimony to that effect, which was introduced without objection.

The thirteenth exception is too general to be considered, but waiving such objection, it has not been made to appear that the ruling was prejudicial to the rights of the appellant.

It is the judgment of this Court that the judgment of the Circuit Court be affirmed.