Counsel for appellee claim that this cause should be dismissed for the want of an assignment of error as prescribed by law, and it is not doubted that this court would be authorized to disregard all errors not distinctly assigned as required by the statute. But it has not heretofore been held, nor do we think it would be a proper construction of the statute to hold, that the Court is prohibited from an examination of an error not assigned, On the contrary, this court has in several cases revised and corrected the judgments of the lower courts for errors which were *23patent on the record, without any assignment. Believing this to he the correct practice, and fully authorized under the law, we have examined the transcript presented in this cause, and find such an error at the commencement of the trial below as will require a reversal of the judgment.
The appellee' filed a petition in the lower court, to have probated what was claimed to be the last will and testament of Henry Davis, deceased; and the appellants filed a protest, or opposition to the probating of the will, and charged that the writing claimed to be the will of Henry Davis was procured through fraud and undue influence, and that the property attempted to be bequeathed was not the property of the pretended testator; and that therefore he had no authority to convey the’same by will or otherwise.
On the trial of the cause, the appellants applied, in open court, for a jury to hear the evidence to be adduced and to determine the facts of the cause. But the court decided that under section twenty of the probate law of August 15,1870, “ There is no trial by jury in probate matters, except when expressly provided by law; that there is no law expressly providing for juries in such cases ;” and therefore appellants are not entitled to a jury to try the issues of fact presented by the pleadings.
The ruling of the court in this respect is believed to be such an error as will entitle the appellants to a new trial. Article five, section sixteen, of the Constitution provides that; “ In all cases of law or equity, when the matter in controversy shall be valued at or exceed ten dollars, the right of trial by jury shall be preserved, unless the same shall be waived by the parties or their attorneys;” and section twenty-six of the same article provides that, “ In the trial of all causes in the district court, the plaintiff or defendant shall, upon application made in open court, have the right of trial by jury, to be governed by the rules and regulations prescribed by law.” These two clauses of the fundamental law of the State are binding upon the people and courts, and even the Legislature has *24no authority, by statutory enactment or otherwise, to alter, abridge or construe any part or clause of the Constitution, excepting when there is express authority so to do; and article five, section twenty-six, granting to the people the right of trial by jury under such rules and regulations as may be prescribed by law, confers upon the Legislature the right to regulate, but not to abridge or deny that right.
We are, therefore, of the opinion that in all cases, either at law or in equity, where the matter in controversy is valued at or exceeds ten dollars, and where an issue of fact is joined between parties, either the plaintiff or defendant has a right to a trial by jury. There were distinct issues of fact between the parties in this cause, in the court below, and either had the right to have those facts determined and settled by a jury of the country. Should the statute of August 15, 1870, be found to be in conflict with the Constitution, then it can have no binding force or effect, but must yield to the paramount authority of the fundamental law.
But it is believed that the Constitution and the law of 1870 are in full harmony, and without a possible conflict. That clause of the statute has reference to the ordinary business of the probate court, when there is no contest or issue of fact to be tried. But should a contest arise in the probate court, and an issue of fact be joined, as presented in the cause at bar, then the Constitution becomes the law, expressly providing for a jury, and is in no sense in conflict with the statute. As this cause will be remanded for further proceedings, it may be proper to remark that the questions as to the authority of Henry Davis to dispose, by will, of all the property held by him at the time of his death, and the rights of his children by a former marriage, as the heirs of their deceased mother, must depend upon facts which should be found by a jury under proper instructions from the court. For the- error indicated this cause is reversed and remanded.
Reversed and remanded.