53 Vt. 653 | Vt. | 1881
The opinion of the court was delivered by
Alanson E. Weatherhead died in 1862, testate. He bequeathed his estate to the appellees, and one Howe, since deceased, in trust, for the use of the appellant. The appellees and said Howe were appointed, and gave a bond as, executors, on the 31st day of May, 1862; they filed an account in the Probate Court on the 25th day of June 1864, which was allowed. On the 29th day of November, 1873, styling themselves executors and trustees, they filed in court, an account showing a balance in their hands of $7332.61, and the Probate Court ordered that said sum “remain in the hands and custody, of the said trustees’to be managed and disposed of according to the provisions of said last will and testament.” In the same character, on the 28th day of April, 1877, they filed a like account of their transactions. On the 6th day of May, 1878, the appellees surviving said Howe, gave a bond to the Probate Court as executors and trustees. On the 22d day of April, 1879, the appellees presented an account of their transactions as executors and trustees, which was allowed by the Probate Court; from such an allowance an appeal to the County Court was taken, and in that court a commissioner was appointed to take the account. The appellees objected to the appointment of a commissioner, claiming a trial by jury as matter of right, and the case comes to this court for revision before final judgment. In support of their claim they cite the twelfth article of our bill of rights, which declares : “ that when any issue of fact proper for the cognizance of a jury, is joined in a court of law, the parties have a right to trial by jury, which ought to be held sacred ” ; and section thirty-one of the constitution : “ Trials of issues, proper for the cognizance of a jury, in the Supreme or County Courts, shall be by jury except when parties otherwise agree.” These provisions were in the constitution adopted in 1786, and have remained in force ever since; and the question presented is, whether the mode of trial ordered by the court below
The first constitution, adopted in 1777, provided : “ that in controversies respecting property, and in suits between man and man, the parties have a right to a trial by jury, which ought to be held sacred ”; and that, “ trials shall be by jury.” These were broad provisions. They applied to all courts, and covered every case respecting property and suit between man and man. What the practice may have been in those early days under such provisions, we are not aware; but if strictly followed, and trials by jury granted in all matters of equity, in probate controversies, and in the action of account at common law, it is not surprising that at the first opportunity the change was made which restricted the right of a jury trial to those causes proper for thé cognizance of a jury. Although the County Court has appellate jurisdiction in probate matters, we do not think that the proceedings therein in that court are subject to the constitutional restrictions as to jury trial; for in those matters such trials are not according to
Our present statute relating to proceedings after appeal provides that the : “ court shall proceed to trial and determination of the question according to the rules of law, and if there shall be any question of fact to be decided, issue may be joined thereon, under the direction of the court, and a trial thereof had by jury.” Gen. Sts. c. 48, s. 34. We think that it is by force of this statute, and a similar one c. 53, s. 23, “ allowing a trial by jury of all questions of fact, in cases where such trial may be proper,” in cases relating to appeals from the decisions of commissioners for the adjustment of claims against estates, that a jury trial is allowed in any cause pending in the appellate court, and not by reason of any rights thereto secured by the constitution. The matters in controversy in this case appertain to a trust estate, and of such affairs, courts of equity had, formei’ly, exclusive control. But were this a matter exclusively of common-law jurisdiction, there is an objection fatal to the claim of the appellees, viz.: that it is a case not proper for the “ cognizance of a jury.” In the case of Plimpton v. Somerset, 33 Vt. 283, Aldis, J., says: “ Even in common-law courts there are many cases in which by the custom of the common law no jury trials can be had as in account, and its derivative book account.” Px-oeeedings, by trustee process, in laying out highways, in assessing damages for property taken for public use, and those in which the issue is tried by the court although in common-law courts, are held not to be within the provisions of the constitution' relating to jury trials; because by the custom of the common law no such trials are had in such cases. It was further held in the case last cited that “ the immemorial practice of proceeding to trial without a jury in a certain class of
The matter in issue between the parties in this case is by way of an accounting, — the settlement of an account; the appellees are called upon by the court to render an account of their stewardship as to the funds and property received by them under the bequest, and their care and management of tbe same; and by long and unbroken custom in all courts, including those of common law, such accountings are never sent to a jury. It is undoubtedly true that questions may arise upon an accounting by trustees, which would be very proper ones to send to a jury, as they may in the auditing of accounts in actions at law, and in other cases where no jury trials are permitted; but this is not the test of a party’s right to a jury trial. In the settlement of a trustee’s single account, numerous such questions might arise, wholly diverse, relating to different subjects, in no way connected, and a proper disposition of which by a jury it would hardly be possible to expect; and the case might be further complicated by the fact that upon an appeal, as will hereafter be seen, every item of the account, whether objected to or not in the Probate Court, is open for examination in the appellate court. It being an accounting, we have no hesitancy in saying that such a case is 44 not proper for the cognizance of a jury,” and therefore the action of the County Court was not subject to any constitutional objection. It only remains then for us to consider whether the action of the County Court was according to the rules of law as provided by c. 48, s. 84, Gen. Sts. The County Court is given power by c. 30, s. 54, Gen. Sts., to appoint commissioners to take, and report to the court the accounts of any executor, administrator, or guardian in a case appealed from a Probate Court. The appellees were originally executors, and although no formal decree was issued by the Probate Court decreeing the property to them in
A query has been suggested, whether the status of the case in the County Court was such that it was in readiness for the appointment of a commissioner, — whether it was not necessary that pleadings should have been filed and an issue made. This would, no doubt, have been the case had we held that the parties were entitled to a jury trial; but by the appeal the papers in the case passed to the County Court, the trustees’ account was among them, and was presented for settlement, both parties insisting upon an adjustment
In Wadsworth v. Fassett, supra, upon the entry of the case in the appellate court the appellant was ordered to file his objections to the account in the nature of a bill of exceptions, or exceptions to the report of auditors, and the court proceeded to consider such objections. We think it the duty of the court to hear the case in bane, or send it to a master or commissioner to state the account and render judgment as the circumstances of the case require.
The judgment of the County Court is affirmed, and cause remanded for further proceedings.