Meade v. Meade

• Decision Date: 17 November 1910
• Citation: 111 Va. 451,69 S.E. 330
• Parties: MEADE et al. v. MEADE et al.
• Court: Virginia Supreme Court

69 S.E. 330

(111 Va. 451)

MEADE et al.

v.MEADE et al.

Supreme Court of Appeals of Virginia.

Nov. 17, 1910.

1. Wills (§ 316^*)—Peobate—Jurisdiction— Jury Trial—Devisavit Vel Non.

Code 1904, § 2544, relating to probate of wills, provides that a court without summoning any party may proceed to probate and admit a will to record or reject the same, and within two years thereafter a person interested who was not a party may proceed by bill in equity to impeach or establish the will on which bill a trial by jury shall be ordered to ascertain whether any, or, if any, how much of the will is the will of the decedent. Held, that such section, does not confer probate jurisdiction on a jury, but merely authorizes a jury trial of an issue of devisavit vel non in a will contest.

[Ed. Note.—For other cases, see Wills, Dec. Dig. § 316.*]

2. Jury (§ 28*) —Right to Jury Trial — Waiver—"Shall."

Code 1904, § 2544, provides that a person interested in a testator's estate may within two years proceed by bill in equity to impeach or establish the will, on which bill a trial by jury shall be ordered. Held, that the word "shall, " as used in such section, should be construed in the sense of "may, " and hence did not prevent a waiver of trial by jury by the parties.

[Ed. Note.—For'other cases, see Jury, Cent. Dig. §§ 176-196; Dee. Dig. § 28.*

For other definitions, see Words and Phrases, vol. 7, pp. 6459-6469; vol. 8, p. 7799.]

3. Jury (§ 34*)—Demurrer to Evidence-Trial by Jury.

The sustaining of a demurrer to the evidence, where the evidence is conceded to be true, and all legitimate inferences therefrom are admitted, is not a violation of statute providing that the issues shall be tried by jury.

[Ed. Note.—For other cases, see Jury, Cent. Dig. §§ 233-235; Dec. Dig. § 34.*]

4. Wills (§ 324*)—Contest—Trial—Devisavit Vel Non—Direction of Verdict.

A verdict may be directed on the trial of an issue of devisavit vel non in a will contest, when the evidence and all the inferences that could justifiably be drawn therefrom are so insufficient to support a verdict for plaintiff that such a verdict if returned must be set aside.

[Ed. Note.—For other cases, see Wills, Dec. Dig. § 324.*]

Appeal from Circuit Court, Clarke County.

Bill by J. M. Meade and others against David Meade, Jr., and others, to impeach the will of David Meade, deceased. From an order sustaining a demurrer to contestants' evidence, they appeal. Affirmed.

Marshall McCormick and F. B. Whiting, for appellants.

A. Moore, Jr., and Francis L. Smith, for appellees.

HARRISON, J. This appeal originated in a bill in equity in the circuit court of Clarke county to impeach the will of David Meade. There was an issue of devisavit vel non, and in the course of that proceeding the contest-ees demurred to the evidence, and the contestants, over their objection, were compelled by the court to join in the demurrer.

The main contention made by the appellants is that a demurrer to the evidence in an issue of devisavit vel non will not lie, for the reason that section 2544, Code 1904, confers probate jurisdiction upon a jury, and not upon the judge who presides at the trial of the issue.

It is the well-settled policy of our jurisprudence that in all civil cases juries are triers of the facts, while the law is determined by the court. It would require very clear and positive enactment to show that the Legislature had changed the power of tribunals administering the law by depriving courts of their judicial authority and intrusting the juries with such functions. There Is nothing in section 2544 to justify the contention that the Legislature has inaugurated such a policy. If the contention of appellants was sound, then a jury trying an issue of devisavit vel non would be judges of the law and facts, while the court would be stripped of its power, and would preside as a mere moderator for the purpose of preserving order during the progress of the trial. Such an anomalous state of affairs cannot receive our approval. It is imbedded in our jurisprudence that the law of the case must emanate from the court.

Other provisions of chapter 112 of the Code, upon the subject of wills, of which section 2544 is a part, when read in connection with that section, show that the Legislature did not intend to give juries the enlarged power claimed for them under it. No reason is perceived why a jury trying the issue under section 2544 should be invested with other or greater powers than a jury trying the issue provided by sections 2538 and 2542 of the Code. In both instances the jury are trying issues of the same nature In each case the jury is trying an issue of fact, according to the course of the common law, under the direction of the presiding judge, subject to the principles of law and method of procedure applicable in such proceedings.

In support of the contention of the appellants they rely with earnestness upon the language, " * * * on which bill a trial by a jury shall be ordered, to ascertain, " etc., found in section 2544. This language can only mean a jury trial, accompanied by all the incidents and mode of procedure attendant upon such a proceeding. The word "shall" in a statute providing that certain issues shall be tried by a jury does not prevent a waiver of trial by the jury, since the word is to be construed in the sense of "may." Whipple v. Eddy, 161 Ill. 114, 43 N. E. 789; Chicago, etc., R. Co. v. Hock, 118 Ill. 587, 9 N. E. 205; A. & E. Ency. L., p. 1097, note.

It can be stated in general terms that sustaining a demurrer to evidence is not in violation of a statute providing that the issue shall be tried by a jury, where the evidence is conceded to be true, and all legitimate inferences therefrom are admitted. Hopkins v. Nashville Ry. Co., 96 Tenn. 409, 34 S. W. 1029, 32 L. R. A. 354.

In the case of Reed v. McCormick, 102 Va. 37, 51, 45 S. E. 868, where the statute relied on provided that the defendant shall be entitled to a jury when the amount involved exceeds $20, and that suits brought under it shall be governed in all respects by the provisions of the act, this court says: "Plaintiff in error claims that plaintiff had no right to demur to the evidence; that the statute by virtue of which this suit was brought expressly provides that defendant 'shall be governed in all respects by the provisions of this act.' While the statute invoked confers exclusive jurisdiction upon courts of law in the trial of cases such as these, it does not change or affect the rules of practice in those courts. Demurrers to evidence have been time out of mind a part of the orderly and regular procedure in courts of common law, and there is nothing in the act which discloses any intention upon the part of the Legislature to alter or abridge them. If the language that the defendant shall be entitled to 'a trial by jury, ' as used in this statute, were sufficient in cases brought under it to take away the right to demur to the evidence, it would seem that the Bill of Rights would long ago have extirpated the practice; for it declares that in suits between man and man a trial by jury is preferable to any other and ought to be held sacred. The right to demur to the evidence has come down to us as part of common-law procedure along with the right of trial by jury; indeed, if there were no trial by jury, there would be no demurrers to evidence. Where the Legislature has desired to prohibit demurrers to evidence, it has done so in explicit terms, and section 2897 of the Code provides that, in an action for insulting words 'no demurrer shall preclude the jury from passing thereon.' "

In the...