In re Harriet C. Peck's Estate
| Decision Date | 18 October 1913 |
| Parties | IN RE HARRIET C. PECK'S ESTATE |
| Court | Vermont Supreme Court |
May Term, 1913.
APPEAL from a decree of the probate court distributing the testate estate of Harriet C. Peck, William C. Peck, one of the legatees, appellant. The issues made by the pleadings are stated in the opinion. Trial by jury at the March Term, 1909 Chittenden County, Taylor, J., presiding. At the close of all the evidence the court submitted the special questions recited in the opinion, directed how the jury should answer them, and rendered judgment on the directed special verdict affirming the decree of the probate court. The appellant excepted. The opinion states the case.
Judgment affirmed. Let a certificate go down.
C S. Palmer, V. A. Bullard and T. W. Moloney for the appellant.
W. B. C. Stickney for the appellees.
Present: ROWELL, C. J., MUNSON, WATSON, and POWERS, JJ., and BUTLER, Superior J.
POWERS
This is an appeal by a legatee from a decree of the probate court for the district of Chittenden, making final distribution of the estate of Harriet C. Peck, who died testate and without issue. The essential facts are so fully shown by the two cases heretofore passed upon by this Court,-- Clark v. Peck's Exrs., 79 Vt. 275, 65 A. 14, and In re Peck's Est., 80 Vt. 469, 68 A. 433,--that they need not be here recited. When the latter case was remanded, final judgment was entered in the county court in favor of the executors of Edward W. Peck. This was pursuant to a stipulation, which, in effect, reserved to this appellant the right to raise and insist upon the same questions in any further proceedings in the probate court. Accordingly, when Mrs. Peck's estate was ready for distribution, and the probate court adjudged that the waiver filed by Mr. Peck was operative, and made a decree giving him two thousand dollars and one-half of the remainder of the property, this appeal was taken. In the county court, by agreement of the parties and consent of the court, the issues were made up by an amended petition filed by the appellant, an amended answer of the executors, and a replication thereto. The case was tried by jury to the extent hereinafter shown, and at the close of the evidence, the court submitted to the jury two special questions as follows:
The court directed the jury to answer both these questions in the negative, and thereupon rendered judgment according to the claims of the appellees, thereby affirming the decree of the probate court.
Exceptions were allowed to various rulings of the court below, a consideration of some of which requires an examination into the character and effect of a jury trial in such cases.
By P. S. 2983, one who appeals from a decree of the probate court is required to file in the county court a certified copy of the record of the proceedings appealed from. P. S. 2984 provides that "when such certified copy is filed in the county court, it shall try the question, and if a question of fact is to be decided, issue may be joined thereon under the direction of the court, and a trial had by jury." This right to a trial by jury is, however, statutory and not constitutional. In re Weatherhead's Est., 53 Vt. 653; In re Welch's Will, 69 Vt. 127, 37 A. 250. The Legislature, therefore, can enlarge or restrict the right at pleasure. P. S. 2984 was formerly R. L. 2279, under which it was held in Lynde v. Davenport, 57 Vt. 597, that a trial by jury was a matter of right. But after the passage of No. 129, Acts of 1884, providing for compulsory references in certain cases, it was held that a jury trial in probate appeals was no longer a matter of right, but of discretion. In re Welch's Will, 69 Vt. 127, 37 A. 250; Hurlburt v. Miller's Estate, 72 Vt. 110, 47 A. 393. By § 28 of No. 63, Acts of 1906, the act of 1884, a part of which had become V. S. 1437, was amended and this provision for compulsory references was stricken out, leaving the law in this respect now under consideration as it stood when Lynde v. Davenport, supra, was decided. This section became P. S. 1792. By § 3 of No. 56, Acts of 1908, the statute was again amended by restoring the provision for compulsory references. This act was approved January 13, 1909, and became effective February 1, 1909, under P. S. 36.
This case was tried at the March Term, 1909, so under the authority of In re Welch's Will and Hurlburd v. Miller's Estate, it must be held that a trial by jury was not a matter of right, but of favor. This being so, the discretion of the county court was not exhausted when it granted a jury trial, but continued throughout the trial. It could submit such questions to the jury as it pleased; it could withdraw from the jury one or all of the issues at any stage of the trial. The verdict, when rendered, would not be binding upon the court, but would be advisory, merely. The court could follow or ignore it. It could render judgment upon it or it could disregard it, find the facts upon the evidence, and render judgment accordingly. For the rule is that where a trial by jury is not a constitutional or statutory right, but the court seeks the aid of the jury in the determination of one or more questions of fact, it may adopt the findings of the jury, modify them, or render a decision as though the trial had taken place without a jury. Kelly v. Home Savings Bank, 103 A.D. 141, 92 N.Y.S. 578.
The most familiar application of this doctrine is to issues in chancery. In some jurisdictions, such issues, even, are within statutory or constitutional provisions requiring a trial by jury. But in those jurisdictions where a trial by jury in equity cases is not a matter of right but of discretion, it is held that the verdict is not binding upon the chancellor, but is advisory, merely; it may aid his conscience, but cannot control his judgment. Selfridge v. Leonard-Heffner Machine Co., (Col.) 117 P. 158, Ann. Cas. 1913B, 282; Short v. Estey, (Mon.) 33 Mont. 261, 83 P. 479; Ramsay v. Hart, 1 Idaho 423; Pittenger v. Pittenger, (Ill.) 70 N.E. 699; Whitlock v. Consumers Gas Trust Co., (Ind.) 26 N.E. 570; Brown v. Kalamazoo Cir. Judge, (Mich.) 42 N.W. 827, 5 L.R.A. 226, 13 Am. St. Rep. 438; Dumbach v. Bishop, 183 Pa. 602, 39 A. 38; Hull v. Watts, 95 Va. 10, 27 S.E. 829; Quinby v. Conlan, 104 U.S. 420, 26 L.Ed. 800; Wilson v. Riddle, 123 U.S. 608, 8 S.Ct. 255; I. & O. Land Improv. Co. v. Bradbury, 132 U.S. 509, 10 S.Ct. 177, 33 L.Ed. 433; Bank v. Alter, (Neb.) 85 N.W. 300.
And it is also held that this discretion continues throughout the entire hearing of the case, and authorizes the court, at any stage of the proceedings, to discharge the jury without a verdict and find the facts for itself, or direct a verdict according to its own ideas. DeGraff v. Manz, (Ill.) 96 N.E. 516; Riehl v. Riehl, (Ill.) 93 N.E. 318; Thomas v. Ryan, (S. D.) 123 N.W. 68.
These holdings are harmonious and logical and bring the whole matter within Prof. Greenleaf's rule that in proportion to the duty of directing an issue to the jury is the obligation on the judge to be governed by their verdict. 3 Greenlf. Ev. § 266.
The doctrine under consideration was applied in Dyson v. Rhode Island Co., (R. I.) 57 A. 771, 65 L.R.A. 236. It is therein held that the power of the court to assess the damages without the aid of a jury, in case of default, was not taken away by a constitutional provision preserving the right of trial by jury inviolate, since at the time of the adoption of the constitution, the court was following the common-law practice of assessing damages in such cases, without calling a jury. And it is further held therein that if, under a statute providing that in such cases "damages shall be assessed by the court, with or without the intervention of a jury, in the discretion of the court," a jury was called to assess the damages, its findings would have to be approved by the court before they became effective. See, also, Deane v. Willamette Bridge Co., (Ore.) 15 L.R.A. 614, 29 P. 440.
In Gilruth v. Gilruth, 40 Iowa 346, the probate of a will was contested on the ground of lack of testamentary capacity and undue influence. A jury trial was demanded and allowed, and these issues submitted. The jury found that the testator was of sound mind, but that the will was procured by the exercise of undue influence. The court set aside the second finding and allowed and probated the will. In this, it was held that there was no error. The court said: "As the court might properly have refused to submit the questions of fact involved in the case to a jury, he did not err in setting aside the facts as found by the jury, and in determining the questions anew."
The announcement of this decision was promptly followed by an amendment of the code so as to make a trial by jury in such cases a matter of right. Since which time it is held in Iowa that the verdict is binding upon the court. Collins v. Brazill, 63 Iowa 432, 19 N.W. 338.
In re Moore, 72 Cal. 335, 13 P. 880, was a contest over the account of an administrator and was tried by jury. Many...
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