Shaw v. Shaw

• Decision Date: 14 November 1911
• Citation: 133 N.W. 292,28 S.D. 221
• Parties: SHAW et al. v. SHAW.
• Court: South Dakota Supreme Court

133 N.W. 292

28 S.D. 221

SHAW et al. v. SHAW.

Supreme Court of South Dakota

November 14, 1911

Appeal from the Circuit Court, Clay County; R. B. Tripp, Judge.

Application for the probate of the will of William Shaw, in which James Henry Shaw and others filed objections and Retta B. Shaw filed an answer to such objections. From a decree of the circuit court on appeal from the county court admitting the will to probate, contestants appeal. Affirmed.

Thomas Sterling and W. O. Knight, for appellants.

C. H Dillon, for respondent.

McCOY J.

The will of William Shaw having been offered for probate in the county court of Clay county, the appellants filed their written objections and contest to the probate of said will alleging various grounds of objection. The respondent made and filed answer to said objection and contest. On the hearing in the county court, decision was in favor of respondent, and an order and decree entered admitting said will to probate, from which said order and decree contestants appealed to the circuit court. When the cause was brought on for trial in the circuit court, a jury was impaneled to try the issues between the parties. After hearing all the evidence, the cause was submitted to the jury. The jury, not being able to agree upon a verdict, were discharged from further consideration of the case. Whereupon the respondent moved the court for findings of fact and conclusions of law in her favor upon the testimony produced before the jury. Appellants duly objected to said motion on the ground, among others, that this action is not of an equitable nature, but is in its nature an action or proceeding at law, and that appellants are entitled to a trial of the issues by a jury as a matter of right. The objections were overruled by the court, to which ruling appellants duly excepted, and the court thereupon made findings of fact and conclusions of law and entered judgment in favor of respondent, from which judgment of the circuit court this appeal is taken.

The sole question brought up for review is as to the right of the court to determine the issues involved and to render judgment without a jury; trial by jury not having been waived, and appellants having objected to trial by the court without a jury. We are of the opinion that the contention of appellants is not well founded and not supported by the weight of judicial authority. In an exhaustive annotated note in the case of Estate of Dolbeer, 15 Am. & Eng. Ann. Cas. 211, the rule is stated thus: "Although there is some conflict of opinion on the question whether there is a constitutional right to a trial by jury in a will contest, the weight of authority is to the effect that such a constitutional right does not exist, either by virtue of the seventh amendment of the Constitution of the United States, or by reason of the provisions in the Constitutions of the various states relating to the preservation of the right of trial by jury"-and citing Cummins v. Cummins, 1 Marv (Del.) 423, 31 A. 816; Lavey v. Doig, 25 Fla. 611, 6 So. 259; Moody v. Found, 208 Ill. 78, 69 N.E. 831; Wright v. Fultz, 138 Ind. 594, 38 N.E. 175; Wills v. Lochnane, 9 Bush (Ky.) 550; Davis v. Davis, 123 Mass. 590; Schmidt v. Schmidt, 47 Minn. 451, 50 N.W. 598; Cartwright v. Holcomb, 21 Okl. 548, 97 P. 385; Clayson v. Clayson, 26 Wash. 253, 66 P. 410. In Estate of Dolbeer, supra, also reported in 96 P. 266, and 153 Cal. 652, the California Supreme Court said: "Contestant demanded a trial by jury, which the court refused to grant. Contestant here contends that he was legally and of right entitled to a jury or that a trial by jury was certainly discretionary, and the court abused its discretion in not according it to him. The right to a trial by jury secured by the Constitution has no reference to or bearing upon proceedings in probate. It has been held that the right of trial by jury is secured by the Constitution only in cases where it has previously existed, in the administration of justice in the course of common law. Probate matters belong to ecclesiastical jurisdiction, where a jury was not a right. Such a proceeding is not really an action at law as defined in the Code. A contest of a will and proceedings to revoke its probate are special proceedings. It follows then, in the absence of a statute providing for a trial by jury, probate proceedings have always been heard by the court without the intervention of a jury. Only in those probate proceedings when the statute expressly confers a right to a trial by jury does the right exist." The Constitution of California on the question involved in this case is substantially the same as the Constitution of this state.

The case of Moody v. Found, supra, in principle, is precisely the same as the case at bar. In that case, as in the case at bar the contest was initiated in the county court, and from an order or judgment of the county court admitting the will to probate appeal was taken to the circuit court. On appeal to the Supreme Court of Illinois it was held that the state of Constitution, providing that the right to trial by jury as heretofore enjoyed shall remain inviolate, does not confer on one contesting the probate of a will the right to demand a jury trial in the circuit court on an appeal from a judgment of the county court admitting the will to probate, that the same issues involved in the circuit court, on appeal 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. In rendering the opinion the Illinois Supreme Court said: "The jurisdiction to admit wills to probate has never been exercised by the common-law courts as a part of the 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 to trial by jury as heretofore enjoyed shall remain inviolate' did not...