Yorkville enquirer. [volume] (Yorkville, S.C.) 1855-2006, 1859-09-22

The Court of Ordinary convened at this place
on Monday last, for the purpose of proving in
solemn form the will of VIM. McKenna, late Of
this District
The considerable number of spectators in at
tendance evinced the interest felt by the commu
nifty in the result of this suit
The Ordinary opened the proceedings by giving
q succnct history Of the case, as far as it had
progressed in his court.
The executors of the will were represented by
Messrs. John D. Wyle and VIM. Connors, of the
Lancaster bar, Messrs T. n Dawkins. of Union,
E. Bellinger, of Columbia, and J. B. Kershaw, of
Camden. For the contestants appeared: Messrs.
j. Williams, W. A. Moore and r. f. Allison, of
Lancaster, and Messrs. Geo. W. Williams and ].
Bolton Smith, of York.
Mr.. Bellinger, on the part of the executors, sta
ted to the court that some of the subscribing wit
nesses to the will were not in attendance account
ed for their absence, and submitted the following
proposition: That the trial progress by the ex-
animation of the one witness in attendance and of
another expected in the evening of the same day,
the opposite party then to introduce their testi-
mony if they saw proper; after which, the court
to stand adjourned until the testimony of those Of
the subscribing witnesses who were not present,
and who in all probability could not attend up
on any subsequent occasion, could be procured
through commission. There were five witnesses
to the two instruments-the will and codcil-
Zone being witness to botb) to be accounted for.
One was present; one was expected in the even.
ing one was transient person and probably out
of the State. and one was dead.
The proposition of the counsel for the execu-
tors, stated above, was strenuously objected to by
the opposite party; and then the former moved
for continuance Of the cause on the ground, that
the absent witnesses were material and important
and could not be here, ordinary diligence having
failed to produce them. Some disputation here
arose as to the time to which the continuance
should be made, but the Ordinary, after duly oon-
sidering the preferences of each Of the parties,
decided that the trial be postponed to the 9th
instant
This point being disposed of, the counsel for
the will formally submitted motion to the court,
for commission to examine any of the subscribing
witnesses to the will, who may be out Of the dis
trict, one hundred miles from the Court House,
or absent from the State the Ordinary to attach
the original will to said commission, to be ident
fed by the said witnesses.
spirited argument here arose between the
counsel on either side in relation to the power of
the Ordinary, under the Act of 1889, to examine
subscribing witnesses to will by commission
The contestants took the ground that witnesses to
q will could only be examined before the Ordina-
ry and further, that the will being record of
the Office, the Ordinary had no power to suffer the
same to leave his custody. The council for the
will submitted, that under the Act of 1889, the
Ordinary had the same power to take the testlmo.
ny of subscribing witnesses to will by Commits
sion that he had to examine the commissioner in
other cases. That the testimony taken by COM
mssioners, the latter acting as the agents of the
Ordinary, was in fact IN examination "before the
Ordinary" in the contemplation of the act And
that the will, though attached to the commission,
which is sealed by the Ordinary and entrusted to
his agents, was still, in effect, in the custody of
the Ordinary.
After hearing the argument upon both sides,