Moody v. Found

• Decision Date: 17 February 1904
• Citation: 208 Ill. 78,69 N.E. 831
• Court: Illinois Supreme Court
• Parties: MOODY v. FOUND.

208 Ill. 78

69 N.E. 831

MOODY

v.FOUND.

Supreme Court of Illinois.

Feb. 17, 1904.

Appeal from Circuit Court, Iroquois County; R. W. Hilscher, Judge.

Controversy between George A. Moody and Alfred Found, executor of the will of George Moody, deceased. From a judgment of the circuit court admitting the will to probate, contestant appeals. Affirmed.

W. J. Brock and J. W. Kern (H. K. Wheeler, of counsel), for appellant.

Daniel F. Higgins and A. F. Goodyear, for appellee.

HAND, C. J.

The appellee, who was the executor therein named, presented to the county court of Iroquois county, for probate, the last will and testament of George Moody, deceased. The county court admitted the will to probate and ordered the same recorded. An appeal was perfected to the circuit court of said county, where the will was again held to be duly proven, and, the testator having died seised of real estate the title to which was transferredby said will, a further appeal has been prosecuted direct to this court.

The appellant moved the circuit court that the issues involved in said appeal be submitted for determination to a jury, which motion was overruled, and the hearing was had before the court without a jury, and the action of the court in declining to submit said issues to a jury has been assigned as error, and is urged as ground for a reversal in this court. The statute of wills in force in this state does not provide for a trial by jury in the county court upon the presentation of a will for probate, but the question whether or not an instrument in writing has been duly established as the last will and testament of a decedent, and is entitled to be admitted to probate, is left to the determination of the county court without a jury. Neither does the statute providing for appeals from the judgment of the county court in admitting or refusing to admit wills to probate provide for a trial by jury in the circuit court, but the same issues are involved in the circuit court upon the appeal which were tried in the county court, and those issues, on appeal, are to be determined by the circuit court without a jury, the same as they were tried without a jury and before the court in the county court.

The jurisdiction to admit wills to probate has never been exercised by the common-law courts as a part of their common-law jurisdiction, but prior to the establishment of probate courts the ecclesiastical courts of England and the analogous courts of this country exercised that jurisdiction, and that jurisdiction, as now exercised by the county court of this state, is purely statutory, so that the constitutional provision that ‘the right of trial by jury as heretofore enjoyed, shall remain inviolate’ (Const. art. 2, § 5), did not confer upon the appellant the right to demand a jury upon the trial of said appeal in the circuit court, as it has been uniformly held that such constitutional provision was designed only to secure the right of trial by jury as it had theretofore been enjoyed in those tribunals which exercised common-law...