This appeal presents a question of law. The right of trial by jury is guaranteed by the Constitution, and when a court usurps such power, it is, in effect, a denial of this Constitutional right — a glorious heritage of the American people.
The will was probated, and this contest timely filed by Mrs. Bailey's sole heirs — the children of her deceased sister. On trial to a jury, called and sworn as the trier of the facts, after plaintiffs had rested their case in chief and before the defendant had offered any testimony whatsoever, the trial court, over plaintiffs' objection, sustained a motion for peremptory instruction, discharged the jury, and rendered judgment in favor of the defendant.
The opinion of the majority and the dissent of the writer on original submission relate facts which are not challenged in any material respect; and, on rehearing (opinion ordered not published), the majority concedes, I think, that there is some evidence raising issues of fact as to the due execution of the involved will and on undue influence of Miss Fowler exerted on the testatrix, Mrs. Bailey, in making the will, if, in fact, the will was executed by her. Thus, undoubtedly, it was the duty of the jury, under proper instruction from the court, to determine the involved issues, pass on the credibility of the witnesses and the weight to be given their testimony. The action of the trial court in discharging the jury and rendering judgment in the face of this record, invaded the province of the jury and usurped powers not granted to any court.
The affirmance of the judgment should have been reversed and the cause remanded to the court below for due administration of justice. *Page 701