31 N.Y.S. 968 | N.Y. Sup. Ct. | 1894
Lead Opinion
At the close of the evidence upon the trial of this action, the counsel for the proponents requested the court to instruct the jury to find a verdict “that the will and codicil of Edward H. Hawke in evidence are his last will and codicil, upon the ground that the record given in evidence establishes the validity of the probate of said will and codicil, and there is not any evidence sufficient to submit to the jury any question as to the due attestation and execution or validity of such will or codicil.” The court granted the motion. The most serious question involved in this appeal is as to the power of the court, in cases of this kind, to direct a verdict by the jury. The action is one brought to determine the validity of the will of Edward H. Hawke, deceased, and is brought under the provisions of section 2653a of the Code of Civil Procedure, as amended by chapter 591 of the Laws of 1892. That section provides for the determination of the validity of a will by an action in the supreme court, and a trial by jury, and, among other things, provides as follows:
“The Issue of the pleadings In such action shall be confined to the question of whether the writing produced is, or is not, the last will or codicil of the testator, or either. It shall be tried by a jury, and the verdict thereon shall be conclusive as to real or personal property, unless a new trial be granted, or the judgment thereon be reversed or vacated. ”
For the purposes of this discussion, it is unnecessary to quote' any other portion of the section. It is contended that under this section the court has no power to direct a verdict; that the words “it shall be tried by a jury, and the verdict thereon shall be conclusive,” excludes the court from exercising such power; that it makes the jury absolute, except where a new trial is granted, or the judgment entered upon their verdict is reversed or vacated. I think this is a misconstruction of the law, and comes from a too literal reading of its provisions. Such a construction, followed to its legitimate and logical results, would leave the court with no power upon the trial except to preserve order. The section must be read in connection with other sections of the Code, and also in connection with what existing laws have determined a trial by jury to be; for it seems to me that the legislature intended to do no more than provide a common-law jury trial, to be governed by the same rules that are applicable to all jury trials at common law. “Shall be tried by a jury” does not mean that a jury of 12 men shall determine all the questions involved, but it means a trial by a jury pursuant to existing laws; that means a jury presided over, advised and directed by, a court, the court being the judge of the law, and the jury of the facts. “The purpose of a jury trial is, that the experience, intelligence, and judgment of twelve men may be availed of to settle disputed ques
Upon the question as to whether there was sufficient evidence produced to warrant the jury in finding a verdict thereon adverse to-the validity of the will, a somewhat careful consideration of such-evidence satisfies me that the trial court was right in its determination, and I see no occasion for attempting to add anything to the very careful review of the evidence made by such court in directing a verdict.
For these reasons the judgment must be affirmed, with costs.
PUTNAM, J., concurs.
Dissenting Opinion
Two grounds of error are urged on this appeal, for which it is claimed by the appellants that this judgment should be reversed: (1) That the court erred in taking the case from the consideration of the jury, and directing a verdict; (2) that the trial judge erred in excluding certain evidence offered by the plaintiff on the trial.
Edward H. Hawke died in the city of Hew York at the residence of his daughter Elizabeth H. Wilson, leaving, him surviving, his children, Edward H. Hawke, Jr., aged about 35 years, Bessie Wilson, aged about 32 years, Alice Hawke, aged about 25, and Madison Genn Hawke, aged about 23, years, being all of the children of the deceased, who was, at the time of his death, a widower. He left an estate, consisting of real and personal property, valued at about the sum of $225,000. The testator left two instruments in writing purporting to be a will and codicil, the former dated January 15, 1892, and the latter dated January 16, 1892. In and by the will he bequeathed to his son Edward H. Hawke $5,000, to be paid to Mm by the executor, with a condition that if he disputed the will, or the-validity of the same, such legacy should not be paid to him, but the same, in that event, should be paid to Elizabeth H. Wilson, daughter-of deceased. To the respondent Susan Bristo Skelding, the testator, by this will, gave a legacy of $10,000, and all the rest of his property was, by specific demonstrative and general devises and bequests under this will, left to the three children of the testator, Genn,. Bessie, and Alice. The respondents Alice Hawke and Madison G. Hawke were named as executors, and by the codicil he appointed Bessie Wilson as executrix, to act as such only in the event of the death of one of the first-named executors, and without being required to give a bond. The will and codicil were presented to the surrogate of Saratoga county for probate, and on the return day of citations thereof the appellant, Edward H. Hawke, Jr., appeared, and filed contesting allegations. After the examination of the subscribing witnesses, the contestant withdrew Ms objections, and the will and codicil were admitted to probate. Immediately thereafter the two actions in which this appeal has been taken were commenced. Issue being duly joined in such actions under the provisions of section 2653a of the Code of Civil Procedure, as amended in 1892, the cases came on for trial at a circuit court held in Sara-toga county on the 15th day of April, 1894, before a justice of this-court and a jury. A verdict against the plaintiff in the first-named' action, and in favor of the plaintiff in the second above-entitled action, was directed by the trial judge, upon which judgments were-entered, and from which the appellants appeal to this court.
The provisions of section 2653a furnish a method of reviewing the probate of a will, which did not exist prior to the amendment of the Code of Civil Procedure in 1892. By the terms of that added section the questions to be heard and considered are specifically defined as follows:
“The issue of the pleadings in such action shall be confined to the question of whether the writing produced is, or is not, the last will or codicil of the-testator, or either. It shall be tried by a jury, and the verdict thereon shall.*972 be conclusive as to real or personal property, unless a new trial be granted, or the judgment thereon be reversed or vacated.”
Before the enactment of this provision of the statute there were three methods of reviewing the probate of a will,—one by the presentation of a petition, within one year after the decree admitting the same to probate, by any person interested in the estate of the deceased, containing allegations against the validity of the will, and praying for a revocation of the probate (Code Civ. Proc. §§ 2647, 2648); another by an appeal to the general term of the supreme court from a decree admitting a will to probate (Code, § 2570), and “if the appeal is taken upon a petition to admit a will to probate, or to revoke the probate of a will, this court may make an order directing the trial by jury, of the material questions of fact arising upon the issues between the parties.” Section 2588 of the Code, while it directs that the issues of fact must be tried by a jury, does not provide, as is provided by section 2653a, that the verdict shall be conclusive; yet in Re Booth, 13 N. Y. St. Rep. 348, which arose under section 2588, Daniels, J., in discussing the provisions of that section, says:
“The statute has required that the contested facts in the case where the decree of the surrogate has been set aside in this manner shall be tried by a jury. By that requirement an effectual trial has been intended; and when, for any reason, the verdict of a jury has been set aside, the cases must be submitted to another jury for the hearing and decision of the issue. They are the tribunal selected by the statute for this purpose.”
A will of real estate may also be attacked when the title comes in question, although the will may have been admitted to probate' in surrogate’s court. The provisions of section 2653a furnish a new and distinct method by this action, of either attacking a will and the probate of the same, or of confirming the validity of a will, as well of real as of personal estate, or the probate thereof, which is--quite unlike either of the original methods of review, above referred to. We are therefore compelled to construe this statute largely upon the language of the section itself. The language of this statute, as we have seen from the above quotation, is peculiar, and gives the verdict of a jury in such a case a conclusiveness and effect which does not follow from a verdict in any other case to which our attention has been directed; and while ordinarily, in a common-law action, questions of fact must be tried by a jury, and their verdict upon disputed questions of fact will not be interfered with on appeal, yet in cases where the verdict is so manifestly against the weight of evidence as to show, on the part of the jury, passion, prejudice, or gross misapprehension, amounting to evidence of fraud, the court may and ought to set it- aside for that reason. But in that class of cases there is no mandate of the statute that the verdict ■shall be conclusive. The statute under consideration in this case ■sharply defines the issue, by whom it shall be tried, and what effect is to be given to the verdict. The question to be heard is “whether •the writing produced is, or is not, the last will and codicil of the •testator, or either.” That question “shall be heard by a jury,” and the verdict thereon shall be conclusive as to the real and personal
“If the result of facts to be found from all the evidence in the case, uncontradicted though that evidence may be, were of so doubtful a nature that different and equally intelligent and unbiased men might fairly differ in opinion as to its character, then the jury, under proper instructions from the court, should examine the evidence, and find the facts which are properly to be inferred therefrom.” Bank v. Sloan, 135 N. Y. 371-383, 32 N. E. 231.
In Hastings v. Insurance Co., 138 N. Y. 479, 34 N. E. 289, O’Brien, J., in discussing the propriety of submitting disputed questions of fact to a jury, uses this language:
“However improbable the testimony of a witness may appear, who testifies to a fact not in itself impossible in the ordinary course of events, the credibility, force, and effect of such testimony is for the jury.”
In Hart v. Bridge Co., 80 N. Y. 622, it was held that where, from the circumstances shown from the evidence, inferences are to be drawn which are not certain and incontrovertible, and as to which persons might differ, it is for the jury to decide. In Powell v. Powell, 71 N. Y. 73, the court say:
“It is the province of the jury not only to pass upon conflicting evidence, but, when different inferences may be drawn from evidence or the conduct of parties, to draw the inference.”