52 A.D. 434 | N.Y. App. Div. | 1900
This action was brought in equity to probate the will of Henry Bradley Plant, deceased, and the main question of fact to be determined upon the trial is as to the domicile of the testator at the time of his death, the plaintiff alleging that he was a resident of the State of New York and the defendants alleging that he was a resident of the State of Connecticut. This being an action in equity, neither party is entitled as a matter of right to’ a trial by a jury, and whether or not an issue of fact shall be tried by a jury is discretionary. (Code . Civ. Proc. § 971.) That the court has power to send such an issue to a jury for trial is clear, and the only question that was presented to the court below was whether the trial of an issue of fact by a jury would tend to a more speedy and proper disposition of the case, or whether from the nature of any issue of fact it could be more advantageously disposed of by a jury than by a single judge trying the case at Special Term.
In this action the verdict of the jury would not be conclusive upon the court, as upon the application for a final judgment the court could disregard the finding of the jury and find the facts from the evidence, irrespective of such a verdict; and in the condition of the calendars in this judicial district it is hardly proper that cases in which the parties are not entitled to a jury trial, as a matter of right, should be sent to be tried by a jury unless such a trial is essential for the proper administration of justice. Now, the main, in fact the only substantial, question of fact to be tried in this case is the question of the domicile of the testator. That this decedent was and had been for many years a.resident of the State of New York is conceded. Whether or not in the last few weeks of his life he changed his residence from New York to Connecticut depends upon his intention in connection with the actual fact of residence. Cases in which courts have been disposed to send.issues of fact to be tried by a jury are. cases where the facts from which inferences are to be drawn are in dispute rather than cases where it does not appear that the facts from which inferences are to be drawn are to be disputed. There is nothing to show in this case that any particular fact or class of facts will be seriously disputed, or that the trial of this question of domicile will be-difficult, or will involve the taking of much testimony. From the nature of the issues presented it would rather seem to be
Upon the whole case we think the .court was justified in refusing this application of the plaintiff, and that the order appealed from should be affirmed, with ten dollars costs and disbursements.
Patterson, McLaughlin and Hatch; JJ., concurred.
Order affirmed, with ten dollars costs.and disbursements.