| N.Y. App. Div. | Nov 14, 1917
•The appellants seek to obtain the reversal of the decree admitting a will to probate, upon the ground that as contestants the surrogate improperly denied them the right to trial by jury.
The citations for the probate of the will of Albert Carnright were returnable in the Surrogate’s Court of Ulster county September 11, 1916. On that day the testimony of one of the subscribing witnesses was taken and the proceeding adjourned to September twentieth. On September twentieth this subscribing witness was further examined, and the testimony of the other subscribing witness taken. Counsel for the contestants took part in both examinations; the testimony on behalf of the proponents was, closed, and the will was offered in evidence. Contestants’ counsel then stated that contestants made formal objection that the execution of the will had not been properly proven, and that the contestants had objections which they would like to file to the probate of the will, and would like time to file them in writing, and would do so that day. The surrogate then stated that as the proof then stood the will would be entitled to admission to probate. Objections to probate were on that day served and filed stating that the testator was not competent to make a will; that the same was obtained by undue influence and was not properly executed, and that the instrument was not the last will and testament of the testator. An adjournment of the hearing was taken from September twentieth to Septem
The contestants base their first claim of right to a jury trial upon the broad ground that they are entitled thereto by virtue of section 2 of article 1. of the State Constitution providing, “ The trial by jury in all cases in which it has been heretofore used shall remain inviolate forever,” and they quote the following language of Chancellor Kent in Smith v. Carll (5 Johns. Ch. 118" court="None" date_filed="1821-01-26" href="https://app.midpage.ai/document/smith-v-carll-5550444?utm_source=webapp" opinion_id="5550444">5 Johns. Ch. 118,119): '“ The Court is never bound (except it be on the issue devisavit vel non, or on bills for a divorce for adultery) to send a matter of fact to be tried by a jury, if it can, to its own satisfaction, decide itself upon the evidence. [Lord Eldon in 3 Vesey & Bea. 42; 4 Dow, 318, 320, 330.]” To this citation might have been added Story’s Equity Jurisprudence (7th ed. § 440), in which it is said: “No other excepted case is known to exist; and it is not easy to discern the grounds upon which this exception stands, in point of reason or principle, although it is clearly settled by authority,” citing many cases. However, the section of the Constitution above cited also provides “ but a jury trial may be waived by the parties in all civil cases in the manner to be prescribed by law.” As to this provision, the appellants claim that the sections of the Code of Civil Procedure hereinafter referred to (added by Laws of 1914, chap. 443) are not effective to provide a waiver, and among other cases cite that of Moot v. Moot (214 N.Y. 204" court="NY" date_filed="1915-02-25" href="https://app.midpage.ai/document/moot-v--moot-3588930?utm_source=webapp" opinion_id="3588930">214 N. Y. 204). That
The contestants had the unquestionable right to a trial by jury in case they seasonably demanded the same (Code Civ. Proc. § 2538), but if they desired a jury trial of any issue they were required to demand it in the objections which were required to be filed, at or before the close of the testimony taken before the surrogate on behalf of the proponent, or at such subsequent time as the surrogate might direct (Id. § 2617); and a jury trial was deemed to be waived unless thus seasonably demanded (Id. § 2537). (Heaton Surrogates, 259.) Thus the law fixed the time when a demand should be deemed to be seasonably made as September twentieth, the time when the objections were filed. The demand made September twenty-eighth was, therefore, not seasonably made but was too late, and the surrogate was justified in denying the contestants’ application to file the alleged amended objections. Whether the filing at a time subsequent to the filing of the original objections, of additional or amended objections, under the permission of the Surrogate’s Court, would entitle contestants to incorporate therein a demand for a jury trial, when the same had not been previously demanded, is not before us for determination. A demand for a trial by jury was no part of the objections, and incorporating in the objections sought to be filed a demand for a jury trial did not constitute them amended objections, or in any way alter the issues to be tried, or revest the contestants with the right-to a jury trial which they had waived. If such practice were admissible it would be subject to repetition, and the proponents could never know, prior to the actual taking of evidence, whether to be prepared for trial upon an adjourned day or whether the same would be postponed by the making of a demand for a jury trial.
The contestants also claim that the question of waiver is to be determined under section 1009 of the Code of Civil Procedure which by section 2770 is made applicable to the
The surrogate appears to have been fully justified in the ruling which he made, and the decree appealed from must therefore, be affirmed, with costs to the respondents.
Decree unanimously affirmed, with costs to the respondents.