Lorenzo's Estate, Matter of

• Decision Date: 05 November 1979
• Docket Number: No. 5991,5991
• Citation: 61 Haw. 236,602 P.2d 521
• Parties: In the Matter of the ESTATE of Manuel F. LORENZO, Deceased.
• Court: Hawaii Supreme Court

Page 521

602 P.2d 521

61 Haw. 236

In the Matter of the ESTATE of Manuel F. LORENZO, Deceased.

No. 5991.

Supreme Court of Hawai'i.

Nov. 5, 1979.

Syllabus by the Court

1. Although notice of a cross-appeal should be filed in order for appellee to present an issue, the supreme court may consider the question if it is subsidiary to an issue raised by appellant.

2. A person claiming dower has the right to a trial by jury.

3. A judge presiding over both the initial probate trial and a subsequent jury trial on the same issues of fact previously decided does not violate HRS § 601-7(a) because the jury trial is not an appeal within the meaning of that section.

4. To establish wilful and utter desertion sufficient to bar dower under HRS § 531-1 (repealed 1976), the petitioner must prove that the spouse left without the consent of petitioner and against his will and that the leaving was unjustified. Lack of justification may be established by a showing that a reasonable person under similar circumstances would not be justified in leaving. The fact that petitioner made a good faith effort to seek the return of the spouse may indicate lack of consent but is not an essential element of utter and wilful desertion unless petitioner himself was guilty of misconduct.

William J. Rosdil, Hilo (Carlsmith, Carlsmith, Wichman & Case, Hilo, of counsel), for respondent-appellant.

William S. Chillingworth, Hilo (Nakamoto, Yoshioka & Chillingworth, Hilo, of counsel), for petitioner-appellee.

Before RICHARDSON, C. J., and KOBAYASHI, OGATA, MENOR and KIDWELL, JJ. ^*

RICHARDSON, Chief Justice.

Respondent-appellant Olive Lorenzo appeals from a jury verdict barring her dower interest in favor of petitioner-appellee, the executor of the estate of Manuel P. Lorenzo.

We reverse the judgment and remand the case.

On July 21, 1972, appellee filed a petition to probate the estate of Manuel P. Lorenzo. The petition provided that the deceased left no spouse. On October 5, 1972, the petition was amended naming Olive Lorenzo as decedent's widow. On January 29, 1974, appellee petitioned to bar appellant's dower interest pursuant to HRS § 533-9 ¹ on grounds of wilful and utter desertion. A non-jury trial before the Honorable Shunichi Kimura of the Circuit Court of the Third Circuit was held on June 18, 1974, pursuant to HRS § 531-1. ² This trial resulted in a verdict for appellee.

On August 30, 1974, appellant moved for a trial by jury pursuant to HRS § 531-2 ³ on the issues of fact decided by the court in its prior ruling. In support of her motion for jury trial, appellant argued that HRS § 531-2, or in the alternative, Article I, Section 13, of the Constitution of the State of Hawaii granted her the right to a jury trial. The motion was granted by Judge Kimura over appellee's objection.

A trial before a jury with Judge Kimura presiding was held on April 28 and 29, 1975. Appellee renewed his objection to the jury trial and appellant objected to Judge Kimura presiding over the jury trial because he had presided over the original trial. Both objections were denied and the case was presented. At the conclusion of appellee's case, appellant moved for a directed verdict which was denied by Judge Kimura. She also unsuccessfully objected to the court's denial of her proposed jury instructions D, E, and F, and to the submission of appellee's proposed instructions 5 and 2. After due deliberation, the jury rendered a verdict barring appellant's dower interest.

The issues presented on this appeal and the order in which they will be discussed are:

I. Whether the trial judge erred in granting appellee's motion for a jury trial.

II. Whether the trial judge erred in presiding over the jury trial when he had presided over the original trial.

III. Whether the trial judge erred in denying appellant's proposed jury instructions D, E, and F and in granting appellee's instructions 2 and 5.

We answer the first two issues in the negative, but find that the trial judge erred in his disposition of jury instructions E, 5 and 2. ⁴

I

Appellee in his answering brief contends that Judge Kimura erred in granting the jury trial. Appellant responds with the argument that this court should not even consider this issue because appellee failed to file a notice of appeal pursuant to Rule 73(a)(2) of the Hawaii Rules of Civil Procedure and that appellant herself did not specifically raise the issue on appeal. We agree that appellee should have noticed a cross appeal on this issue, but we may consider the contention because it is subsidiary to the other issues raised by appellant. Furthermore, Judge Kimura did not err in granting the jury trial, because we find that Article I, Section 13 of the Constitution of the State of Hawaii ⁵ confers such a right.

Rule 3(b)(3) of the Rules of the Supreme Court states that appellant's questions presented in his opening brief "will be deemed to include every subsidiary question fairly comprised therein." Appellant raises several issues on appeal concerning the propriety of certain of the trial judge's rulings during the jury trial. These issues can only be reached if the jury trial was properly granted in the first place. As we stated in Shoemaker v. Takai, 57 Haw. 599, 607, 561 P.2d 1286, 1291 (1977): "(I)t seems that no cross appeal is necessary in order that an appellate court may review a question closely related, in substance, to a question raised by the appeal." We believe the issue of whether the trial court erred in granting appellant's motion for jury trial is a subsidiary question underlying the other issues raised by appellant, and thus, a proper question for this court's consideration. ⁶

Although Judge Kimura did not specify his grounds for granting appellant's motion for jury trial, appellant argues that the jury trial in this case is authorized under HRS § 531-2 or under the Constitution of the State of Hawaii. For the reasons stated Infra, we agree with appellant's latter ground and find that the jury trial in this case was proper pursuant to Article I, Section 13 of our state constitution.

HRS § 531-1 provides that matters of probate and of administration shall be heard and determined by a judge without the intervention of a jury in the first instance. However, HRS § 531-2 qualifies § 531-1 by allowing a jury trial in the same case after the probate judge's decision "(w)henever the value of the estate of any deceased person exceeds $500" and the claimant takes "by virtue of any will or testamentary devise, or by virtue of the statutes of descent of property in the State." Manuel Lorenzo's estate is valued over $500. However, Olive Lorenzo, claimant in this case, claims by way of a dower interest, an interest not by virtue of any will or statute of descent. In re Estate of Brenig, 7 Haw. 640 (1889); Carter v. Carter, 10 Haw. 687 (1897); Y. Ahin v. Opele, 17 Haw. 525 (1906); Estate of Castle, 25 Haw. 108 (1919). Thus, appellant's demand for a jury trial cannot be based on HRS § 531-2.

Article I, Section 13 of the Constitution of the State of Hawaii preserves the right of trial by jury in suits at common law. Although dower was a creature of the common law, ⁷ a number of states have modified the concept by statute. The Hawaii Legislature has codified the common law dower right in its enactment of HRS § 533-1. ⁸ Despite dower's current statutory form, its purpose and effect remain the same as that established at common law as a marital right created to provide an assured means of support for the surviving wife. G. Thompson, 4A Commentaries on the Modern Law of Real Property § 1911 (repl. 1961). Thus, Hawaii's statutory dower rights do not create an entirely new cause of action but originate in the common law. Merely because the concept of dower has been statutorily modified does not alter its essential character as being part of the common law. ⁹ In fact, this court in Estate of Castle, 25 Haw. 108, 116 (1919), stated: "(T)he nature of the estate which the wife has by way of dower under the statute is the same as under common law dower so that anything that may be said of common law dower is equally applicable to this estate." See generally Carter v. Carter, 10 Haw. 687, 693 (1897). Accordingly, the right to jury trial as preserved in suits at common law also applies to suits involving dower claims. The trial judge correctly granted appellant's motion for a trial by jury.

II

Appellant asserts that under HRS § 601-7(a) it was error for Judge Kimura to preside over both the probate trial without a jury and the subsequent jury trial of the same case. HRS § 601-7(a) reads in pertinent part:

§ 601-7 Disqualification of judge; relationship, pecuniary interest, previous judgment, bias or prejudice. (a) No person shall sit as a judge in any case in which his relative by affinity or consanguinity within the third degree is counsel, or interested either as a plaintiff or defendant, or in the issue of which the judge has, either directly or through such relative, any pecuniary interest; nor shall any person sit as a judge in any case in which he has been of counsel or on an appeal from any decision or judgment rendered by him.

Our disposition of this issue turns on whether the second jury trial was an "appeal" within the meaning of the section. The purpose of the statute is to "secure to litigants the right of a fair and impartial review of judgments and decisions . . . before judges other than those who themselves rendered the judgments or decisions thus to be reviewed." Estate of Beckley, 31 Haw. 150, 154 (1929). ¹⁰ Although we indicated in our discussion of issue I Supra that the jury trial in this case was not proper pursuant to HRS § 531-2 but proper under our state constitution, the effect of granting the jury trial is the same under both sections namely to permit an "aggrieved party" an opportunity to try the same issues of fact before a broader panel a jury of his peers. The judge in this second instance...