Davis v. Davis

• Decision Date: 01 January 1870
• Citation: 34 Tex. 15
• Parties: M. H. DAVIS AND OTHERS v. E. M. DAVIS.
• Court: Texas Supreme Court

34 Tex. 15

M. H. DAVIS AND OTHERS

v.E. M. DAVIS.

Supreme Court of Texas.

1870.

1. Errors apparent on the face of the record may be, and often have been, revised and corrected by this court, though not assigned. It is discretionary with the court, however, whether it will regard such unassigned errors.

2. It is not within the power of the legislature to alter or abridge the right of trial by jury, which, by section sixteen of article five of the constitution, is secured “in all cases of law or equity, when the matter in controversy shall be valued at or exceeds ten dollars;” and which, by section twenty-six, of the same article, is further secured “in the trial of all causes in the district court, upon application made in open court.”

3. The twentieth section of the probate act of August 15, 1870, provides that “there is no trial by jury in probate matters, except when expressly provided by law.” Held, that this statutory provision has reference only to the ordinary business of the probate court, when there is no contest or issue of fact to be tried.

4. When an issue of fact is joined in a probate proceeding, the constitution requires that it shall be tried by a jury, unless the jury be waived; and this requirement is a provision of law which obviates any supposed conflict between the probate act of 1870 and the constitution, in this respect.

5. The widow of a decedent presented for probate a writing, which purported to be his last will and testament. The decedent's children, by a former wife, filed a protest, or contestation, wherein they charged that the writing propounded as the will was procured by fraud and undue influence; and further alleged that the property sought to be devised was not the property of the decedent, but belonged to the estate of the deceased mother of the contestants, who were entitled to it as her heirs. A jury trial of these questions of fact was demanded by the contestants, but the district court (sitting in probate) ruled that the act of August 15, 1870, dispensed with juries for the trial of such issues in this proceeding, and the demand of the contestants was refused. Held, that the contestants had a constitutional right to a trial of the issues of fact by a jury, and the refusal of such a trial was error, and error of such a character that this court takes cognizance of it, though not assigned as error by the appellants.

APPEAL from Grayson. Tried below before the Hon. C. C. Binkley. The trial below was in the district court sitting in probate, and was had at its fall term, 1870.

The appellee was the widow of Henry Davis, to whom it appears she was married in 1867, when he was about seventy years of age, and she something less than forty. He died in March, 1870, and by the instrument propounded as his will very nearly all he had was left to the widow, with a further provision that if she should die before he did, then the property devised to her should vest in ““the heirs of her body,” of which class of heirs she had one by Davis, and several by a previous husband.

Davis also had a numerous progeny by a previous marriage, and it was by some of them that the protest against the probate was interposed.

A good deal of evidence on both sides, relative to the allegations made by the protest, appears in the transcript; but as this court disposes of the case upon the constitutional question alone, there is no occasion to detail it.

The will was admitted to probate, and the contestants appealed. The opinion delivered in this case by Judge Ogden was that rendered on its first submission. A rehearing being allowed, and full argument heard, the brief opinion of Judge Walker was rendered.

Joseph Bledsoe, for the appellants, filed an able argument, discussing the case fully upon its merits.

J. B. Morris and Chandler & Carleton, for the appellee, discussed the jury question after they had obtained the rehearing. After arguing that the probate of a will is a matter of evidence merely, and that the legislative control over it is unlimited, when vested rights are not impaired, these counsel proceeded as follows:

Section seven, article five, of the constitution gives three separate and distinct jurisdictions to the district court, to wit: First, an original jurisdiction for the trial of causes; second, an appellate jurisdiction for the trial of causes originating in inferior courts; and third, an “original and exclusive jurisdiction for the probate of wills,” etc., “under such rules and regulations as may be prescribed by law.”

Under the above express grant of power, the legislature did, on the fifteenth day of August, 1870, pass a law prescribing rules and regulations under which the district court may exercise its probate jurisdiction. Section twenty of this law expressly says that “there is no trial by jury in matters of probate except when expressly provided by law.” Section seventy-six of said law sets out in extenso what the affidavit must contain before a will shall be considered as having been proven up sufficiently to admit it to record, and allow it to be admitted in evidence of the rights it professes to confer. We assert with confidence that the probating of a will means, in its legal sense, merely this and nothing more. To determine this question, then, as to whether or not the legal forms prescribed in the law have been complied with by the proper parties, the law in effect says there shall be no jury when it does not provide for one.

Section eighty-one provides that any party interested in a will may contest the same by commencing suit in the district court for that purpose within four years after the order probating the will has been entered. Section eighty-two gives parties, after discovering fraud in a will, the right to institute suit to contest its validity.

It is a well known rule of construction that all the parts of the laws should be construed together when passing upon the legal effect or constitutionality of a law.

The act of March 20, 1848 (Pas. Dig. art. 1262, 301), contains substantially the same provisions as sections seventy-six, eighty-one, eighty-two and eighty-three, of the act of 1870, and the chief justice of the county without a jury decided all matters of probate.

From section seventy-six of the present law we find what the legislature has said is necessary to make a will “prove itself.” In doing this it only establishes a rule of evidence, and sections eighty-one, eighty two and eighty-three, clearly prove that it has authority to do this, because these sections clearly show that by so doing, no vested right or constitutional guaranty is sought to be infringed. Under a constitutional grant of power this act says, in effect, that to contest the validity of a will raises the trial of a cause, and that the district court under its jurisdiction to try causes must pass upon it aided by a jury. When the law says that to probate a will is one thing, and to contest the validity of a will is another thing, it only establishes rules affecting the remedy and evidence. This act is in harmony with the old law, and in harmony with the laws of the different states as far as we have been able to examine them. It is a principle as old as American law that all evidences of title, whether wills, deeds or anything else, should be proven up according to legal form, and put on record, in order that the world may have notice of the existence of such title. Entirely separate and distinct from this rule of evidence is the question as to the validity of a deed, will or other evidence of title. This question must be raised by commencing a suit in the district court, making all persons interested in the will or deed parties to the suit, and then try the cause ab initio, according to law, and the rules of evidence established by law. It will be remembered that the present law, in pointed terms expressly says that the probate judge cannot pass upon the validity of a will when it says that for this purpose suit must be commenced in the district court. When a deed is properly proven up, and recorded, it is prima facie evidence of title. Its validity can be attacked by commencing the proper suit in the district court. When a will has been probated and recorded it is prima facie evidence of title. Its validity can be attacked by commencing the proper suit in the district court. We insist that the act of August 15, 1870, affects no vested rights, destroys no constitutional guaranties, and when it says that the formal proof of a will is one thing, and must be made in one way, and that the validity of a will is another thing, and must be contested in another way, it only establishes rules of evidence, and rules regulating legal remedies.

Section twenty-six, article five, of the constitution, says: “In the trial of all causes in the district court the plaintiff or defendant shall, upon application made in open court, have the right of a trial by jury, to be governed by the rules and regulations prescribed by law.”

The act of August 15, 1870, following Blackstone, Kent, Bouvier, Daniel--the law of March 20, 1848, and...