In re Peck's Estate

• Decision Date: 18 October 1913
• Parties: In re PECK'S ESTATE.
• Court: Vermont Supreme Court

88 A. 568

87 Vt. 194

In re PECK'S ESTATE.

Supreme Court of Vermont. Chittenden.

Oct. 18, 1913.

Munson and Powers, JJ., dissenting.

Exceptions from Chittenden County Court; William H. Taylor, Judge.

Appeal by William H. Clark, as legatee under the will of Harriet C. Peck, from a decree of the probate court making final distribution of the estate. Verdict directed by the county court for the appellees, and the appellant in that court excepted. Judgment affirmed.

C. S. Palmer and V. A. Bullard, both of Burlington, for appellant.

W. B. C. Stickney, of Rutland, for appellees.

POWERS, J. 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 Ex'rs, 79 Vt. 275, 65 Atl. 14, and In re Peck's Estate, 80 Vt 469, 68 Atl. 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 $2,000 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: "Does the jury find anything was done by the said Edward W. Peck in his lifetime prejudicial to the rights of the said William H. Clark or any of the other legatees under the will of said Harriet C. Peck, except his waiver of the provisions of said will, pursuant to the statute?" "Does the jury find that said William H. Clark or any of the other legatees under the will of said Harriet C. Peck have suffered or will suffer any injury by reason of anything done by said Edward W. Peck in reference to the estate of the said Harriet C. Peck, or with the property of said estate, before his determination to waive the provisions of the will of the said Harriet C. Peck, and the filing of the notice of said waiver, December 12, 1904?" 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 Estate, 53 Vt 653; In re Welch's Will, 69 Vt. 127, 37 Atl. 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 Atl. 250; Hurlburt v. Miller's Estate, 72 Vt. 110, 47 Atl. 393. By section 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 the respect now under consideration as it stood when Lynde v. Davenport, supra, was decided. This section became P. S. 1792. By section 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 Hurlburt 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 App. Div. 141, 92 N. Y. Supp. 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., 51 Colo. 314, 117 Pac. 158, Ann. Cas. 1913B, 282; Short v. Estey, 33 Mont. 261, 83 Pac. 479; Ramsay v. Hart, 1 Idaho, 423; Pittenger v. Pittenger, 208 Ill. 582, 70 N. E. 699; Whitlock v. Consumer's Gas Trust Co., 127 Ind. 62, 26 N. E. 570; Brown v. Kalamazoo Cir. Judge, 75 Mich. 274, 42 N. W. 827, 5 L. R. A. 226,13 Am. St Rep. 438; Dunbach, v. Bishop, 183 Pa. 602, 39 Atl. 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 Sup. Ct 255, 31 L. Ed. 280; I. & O. Land Improv. Co. v. Bradbury, 132 U. S. 509, 10 Sup. Ct. 177, 33 L. Ed. 433; Bank v. Alter, 61 Neb. 359, 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. De Graff v. Manz, 251 Ill. 531, 96 N. E. 516; Riehl v. Riehl, 247 Ill. 475, 93 N. E. 318; Thomas v. Ryan, 24 S. D. 71, 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 Greenl. Ev. § 266.

The doctrine under consideration was applied In Dyson v. Rhode Island Co., 25 R. I. 600, 57 Atl. 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. Williamette Bridge Co., 22 Or. 167, 29 Pac. 440, 15 L. R. A. 614.

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 Pac. 880, was a contest over the account of an administrator, and was tried by jury. Many of the errors complained of arose in the impaneling of the jury, and the allowance or refusal of instructions. It was held that a trial by jury was not a matter of right, and that their verdict was merely advisory to the court, and therefore irregularities in the formation of the jury and errors in the instructions were immaterial.

In re Jackman's Will, 26 Wis. 104, was a probate appeal which arose under a...