Stevens v. Myers

• Decision Date: 30 July 1912
• Citation: 126 P. 29,62 Or. 372
• Parties: STEVENS v. MYERS.
• Court: Oregon Supreme Court

126 P. 29

62 Or. 372

STEVENS v. MYERS.

Supreme Court of Oregon

July 30, 1912

McBride and Bean, JJ., dissenting.

On rehearing. Former decision affirmed.

For former opinion, see 121 P. 434.

BURNETT J.

Upon the ex parte petition of George Tobias Myers, Jr., the county court of Multnomah county issued to him letters testamentary on the will of his deceased father. Afterwards, in a proceeding initiated in the same county court by his sister Georgia Frances Stevens, the petitioner here, to contest the will, the executor named therein again propounded it for probate; but the court refused the same and set the will aside, together with the codicil attached thereto. On appeal to the circuit court, the decree of the county court was sustained. On appeal to this court, the decrees of the county and circuit courts, setting aside the will and codicil in question, were both reversed, and the cause remanded for further proceedings in settlement and distribution of the estate of the testator in accordance with the directions of the original and supplemental testament hitherto under consideration. 121 P. 434.

An able petition for a rehearing on the facts was filed, coupled with the contention that in case the court should adhere to its former decision its mandate should be so modified as to send the case back for a jury trial. Both in the county court and in the circuit court, the contestant demanded trial by jury which was refused in both instances. Although she did not appeal from either of those decrees, she now maintains that she was deprived of the right of trial by jury; and hence this litigation cannot be terminated without that right having been subserved.

On September 26, 1849 (Laws 1850-51, p. 274), the territorial Legislature passed "an act respecting wills," providing, among other things, as follows:

"Section 31. If any person interested in the probate of any will shall appear within five years after the probate or rejection thereof and by petition to the district court of the county contest the validity of the will or pray to have the will proved which has been rejected an issue shall be made up whether the writing produced be the will of the testator or not which shall be tried by a jury, or if neither party require a jury, by the court.

"Section 32. The verdict of the jury or the finding and judgment of the court shall be final, saving to the court the right of granting a new trial as in other cases, and to either party an appeal in matters of law to the Supreme Court."

In January, 1853, the territorial Legislature passed "An act to establish a probate court and define its duties and powers," which by its provisions was to take effect from and after May 31, 1853. Section 8 of that act prescribes that: "The judge of probate for each county shall have and possess the following powers: Original jurisdiction in all cases relative to the probate of last wills and testaments, the granting of letters testamentary and of administration. *** To hear and determine all disputes and controversies respecting wills, the right to executorship administration or guardianship, or respecting duties or accounts of executors, administrators or guardians. ***" Section 23 lays down the rule that "any person aggrieved by any order, allowance, or sentence, decree, or denial of any judge of probate, or any other act in his official capacity, may appeal therefrom to the district court within and for the same county, provided appeal be taken within twenty days from the date of the proceeding appealed from." Section 30 says that: "If upon hearing an appeal in the court above any question of fact shall occur that is proper for a jury to try the court may at its discretion cause it to be tried upon the issue to be formed for the purpose under the direction of the court." On December 15, 1853, the sections last quoted were re-enacted by the Legislative Assembly of the territory, as well as the sections relating to the commencement of a proceeding in the district court, without change, although in separate acts of the same date. The territorial law was in this condition at the adoption of the state Constitution, section 17 of article 1 whereof states that "in all civil cases the right of trial by jury shall remain inviolate." Section 7, art. 18, reads that "all laws in force in the territory of Oregon when this Constitution takes effect and consistent therewith shall continue in force until altered or repealed."

The position assumed by the petitioner now is that, although she commenced her proceeding in the county court, rather than in the circuit court, and has not appealed from either of the decrees, she is yet entitled to be heard before a jury; the issue having been decided against her on the equity trial de novo in this court.

Let us first consider the subject as though the constitutional provision that "in all civil cases the right of trial by jury shall remain inviolate" has the widely expanded meaning claimed for it by petitioner's counsel; that the procedure outlined in the territorial statutes mentioned furnishes the ruling definition of the term "trial by jury"; and that in that form it is preserved to the present day.

Under such a liberal construction, we observe that the probate court of that period had original jurisdiction to hear and determine all disputes and controversies respecting wills, and that trial by jury was discretionary with the court, both in the probate court and in the district court on appeal. Thus it is that under the régime of those times jury trial was not a matter of right in will contests originating in the probate court, to the powers and duties of which the county court of the present day has succeeded in pursuance of section 12 of article 7 of the state Constitution as it stood prior to the amendment of 1910. It was only in the proceeding initiated by petition to the district court within five years after probate or rejection of a will that trial by jury was awarded as a matter of right. It seems plain that if in those days a party aggrieved by the terms of a will went into the probate court with his contention he would be governed by the trial procedure established in that forum and in the district court on appeal from the court of original jurisdiction, including the discretion of the court as to jury trial. Furthermore, it is equally apparent that such a party, even in territorial times, would be bound by the decision of a court of original jurisdiction to which he had voluntarily submitted his grievance, subject, of course, to the right of appeal, and would be thereby barred from afterwards inaugurating a contest by original proceedings in the district court.

It cannot be that a contest begun in the probate court and carried to the district court on appeal was after all idle pastime, leaving the parties free to begin over again in the district court on the same issue of devisavit vel non. If these several remedies were preserved at all, their administration is vested in the county and circuit courts, respectively, as it was formerly in the territorial probate and district courts; for the Constitution, as it was first adopted, gave to the circuit courts all judicial power, authority, and jurisdiction not vested by that instrument, or by laws consistent therewith, exclusively in some other court. At the same time it invested the county court with jurisdiction pertaining to probate courts. Article 7, §§ 9, 12, original Constitution. If, therefore, in territorial times a party attacking a will had his remedy by a jury trial as of right in the then district court on an original proceeding, and not in the probate court, he must in these latter days, if that remedy survives, seek it in the circuit court, which has succeeded to the powers of the former district court. As said by Mr. Justice Shattuck, a distinguished member of the constitutional convention, in Wright v. Young, 6 Or. 87, 92: "The Constitution of the state (section 7, art. 18) continued all the laws of the territory in force which were not inconsistent with the Constitution. By construction and uniform practice, the jurisdiction and practice of the territorial district court were deemed transferred to the circuit court, and in the territorial statutes, compiled and published in 1855, were recognized as the law of the state regulating and controlling the practice and decisions of the circuit court." The conclusion on this view of the case is that, if the trial by jury is to be awarded at all as of right in will contests, it must be in an original proceeding initiated in the circuit court as successor of the territorial district court, and is not demandable in cases brought there on appeal. As applied to the present contention, it leads to the conclusion that the petitioner voluntarily took her complaint into a tribunal where a jury trial in such disputes was never more than discretionary, knowing, also, that the same conditions obtained on appeal; and, under such circumstances, she cannot now be heard to demand a jury trial as of right.

Thus far we have accepted as a postulate the contention that the statute of September 26, 1849, re-enacted in the main December 15, 1853, authorizing will contests by jury trial in the district court, was a valid law in existence at the adoption of the Constitution, and hence to be considered in the definition of the term "trial by jury." In section 9 of the act of Congress of August 14, 1848 establishing the territorial government of Oregon (chapter 177, 9 U.S. Stat. at Large, 323), we read that "the judicial power of said territory shall be vested in a supreme court, district courts, probate courts, and in justices of the peace. *** The jurisdiction of the several courts herein provided for,...