*399Decided July 30, 1913.
On Rehearing.
[126 Pac. 29.]
Mr. Justice Burnettdelivered the opinion of the court.
Mr. Justice McBride and Mr. Justice Bean dissenting.Upon the ex parte petition of George Tobias Myers, Jr., the county court of Multnomah County issued to him letters testamentary on the will of his deceased father. Afterwards, in a proceeding initiated in the same county court by his sister, Georgia Frances Stevens, the petitioner here, to contest the will, the executor named therein again propounded it for probate; but the court refused the same and set the will aside, together with the codicil attached thereto. On appeal to the circuit court, the decree of the county court was sustained. On appeal to this court, the decrees of the county and circuit courts, setting aside the will and codicil in question, were both reversed, and the cause remanded for further proceedings in settlement and distribution of the estate of the testator in accordance with the directions of the original and supplemental testament hitherto under consideration. 121 Pac. 434.
An able petition for a rehearing on the facts was filed, coupled with the contention that in case the court should adhere to its former decision its mandate should be so modified as to send the case back for a jury trial. Both in the county court and in the circuit court, the contestant demanded trial by jury, which was refused in both instances. Although she did not appeal from either of those decrees, she now maintains that she was deprived of the right of trial by jury; and hence this litigation cannot be terminated without that right having been subserved.
6. On September 26, 1849 (Laws 1850-51, p. 274), the *400territorial legislature passed “an act respecting wills,” providing, among other things, as follows:
“Section 31. If any person interested in the probate of any will shall appear within five years after the probate or rejection thereof and by petition to the district court of the county contest the validity of the will or pray to have the will proved which has been rejected an issue shall be made up whether the writing produced be the will of the testator or not which shall be tried by a jury, or if neither party require a jury, by the court.
“Section 32. The verdict of the jury or the finding and judgment of the court shall be final, saving to the court the right of granting a new trial as in other cases, and to either party an appeal in matters of law to the Supreme Court.”
In January, 1853, the territorial legislature passed “An act to establish a probate court and define its duties and powers,” which by its provisions was to take effect from and after May 31, 1853. Section 8 of that act prescribes that:
“The judge of probate for each county shall have and possess the following powers: Original jurisdiction in all cases relative to the probate of last wills and testaments, the granting of letters testamentary and of administration. * * To hear and determine all disputes and controversies respecting wills, the right to executorship, administration or guardianship, or respecting duties or accounts of executors, administrators or guardians. * *”
Section 23 lays down the rule that “any person aggrieved by any order, allowance, or sentence, decree, or denial of any judge of probate, or any other act in his official capacity, may appeal therefrom to the district court within and for the same county, provided appeal be taken within twenty days from the date of the proceedings appealed from.”- Séction 30 says that:
“If upon hearing an appeal in the court above any question of fact shall occur that is proper for a jury to try the court may at its discretion cause it to be tried *401upon the issue to be formed for the purpose under the direction of the court.”
On December 15, 1853, the sections last quoted were re-enacted by the legislative assembly of the territory, as well as the sections relating to the commencement of a proceeding in the district court, without change, although in separate acts of the same date. The territorial law was in this condition at the adoption of the State Constitution, Section 17 of Article I whereof states that “in all civil cases the right of trial by jury shall remain inviolate.” Section 7, Article XVIII, reads that “all laws in force in the territory of Oregon when this constitution takes effect and consistent therewith shall continue in force until altered or repealed.”
The position assumed by the petitioner now is that, although she commenced her proceeding in the county court, rather than in the circuit court, and has not appealed from either of the decrees, she is yet entitled to be heard before a jury; the issue having been decided against her on the equity trial de novo in this court.
Let us first consider the subject as though the constitutional provision that “in all civil cases the right of trial by jury shall remain inviolate” has the widely expanded meaning claimed for it by petitioner’s counsel; that the procedure outlined in the territorial statutes mentioned furnishes the ruling definition of the term “trial by jury”; and that in that form it is preserved to the present day.
Under such a liberal construction, we observe that the probate court of that period had original jurisdiction to hear and determine all disputes and controversies respecting wills, and that trial by jury was discretionary with the court, both in the probate court and in the district court on appeal. Thus it is that under the regime of those times jury trial was not a matter of right in will *402contests originating in the probate court, to the powers and duties of which the county court of the present day has succeeded in pursuance of Section 12 of Article VII of the State Constitution as it stood prior to the amendment of 1910. It was only in the proceeding initiated by petition to the district court within five years after probate or rejection of a will that trial by jury was awarded as a matter of right. It seems plain that if in those days a party aggrieved by the terms of a will went into the probate court with his contention he would be governed by the trial procedure established in that forum and in the district court on appeal from the court of original jurisdiction, including the discretion of the court as to juiy trial. Furthermore, it is equally apparent that such a party, even in territorial times, would be bound by the decision of a court of original jurisdiction to which - he had voluntarily submitted his grievance, subject, of course, to the right of appeal, and would be thereby barred from afterwards inaugurating a contest by original proceedings in the district court.
It cannot be that a contest begun in the probate court and carried to the district court on appeal was after all idle pastime, leaving the parties free to begin over again in the district court on the same issue of devisavit vel non. If these several remedies were preserved at all, their administration is vested in the county and circuit courts, respectively, as it was formerly in the territorial probate and district courts; for the constitution, as it was first adopted, gave to the circuit courts all judicial power, authority, and jurisdiction not vested by that instrument, or by laws consistent therewith, exclusively in some other court. At the same time it invested the county court with jurisdiction pertaining to probate courts. Article VII, Sections 9, 12, original constitution. If, therefore, in territorial times a party attacking a will had his *403remedy by a jury trial as of right in the then district court on an original proceeding, and not in the probaté court, he must in these latter days, if that remedy survives, seek it in the circuit court, which has succeeded to the powers of the former district court. As said by Mr. Justice Shattuck, a distinguished member of the constitutional convention, in Wright v. Young, 6 Or. 87, 92:
“The Constitution of the State (Section 7, Article XVIII) continued all the laws of the territory in force which were not inconsistent with the constitution. By construction and uniform practice, the jurisdiction and practice of the territorial district court were deemed transferred to the circuit court, and in the territorial statutes, compiled and published in 1855, were recognized as the law of the State regulating and controlling the practice and decisions of the circuit court.”
The conclusion on this view of the case is that, if the trial by jury is to be awarded at all as of right in will contests, it must be in an original proceeding initiated in the circuit court as successor of the territorial district court, and is not demandable in cases brought there on appeal. As applied to the present contention, it leads to the conclusion that the petitioner voluntarily took her complaint into a tribunal where a jury trial in such disputes was never more than discretionary, knowing, also, that the same conditions obtained on appeal; and, under such circumstances, she cannot now be heard to demand a jury trial as of right.
7. Thus far we have accepted as a postulate the contention that the statute of September 26, 1849, re-enacted in the main December 15, 1853, authorizing will contests by jury trial in the district court, was a valid law in existence at the adoption of the constitution, and hence to be considered in the definition of the term “trial by jury.” In Section 9 of the act of Congress of August 14, 1848, establishing the territorial government of Oregon *404(Chapter 177, 9 U. S. Stat. at Large, 323), we read that “the judicial power of said territory shall be vested in a supreme court, district courts, probate courts, and in justices of the peace. * * The jurisdiction of the several courts herein provided for, both appellate and original, and that of the probate courts and of justices of the peace, shall be as limited by law. * * And each of the said district courts shall have and exercise the same jurisdiction in all cases arising under the Constitution of the United States and the laws of said territory as is vested in the circuit and district courts of the United States. * *” Section -6 of the same act provides “that the legislative power of the territory shall extend to all rightful subjects of legislation not inconsistent with the Constitution and laws of the United States,” and, after detailing sundry restrictions on the power of the territorial legislature, declares generally that “all such laws or any law or laws inconsistent with the provisions of this act shall be utterly null and void.” That federal statute set' bounds upon the powers of the territorial government, both as to its courts and its - lawmaking powers. In a sense, it was the' territorial constitution, and by it all the enactments of its lawmakers must perforce be construed.
A national statute of almost identical terms, relating to thé governmént of the territory of ídaho, was considered in Moore v. Koubly, 1 Idaho, 55. It appears in that case that the legislature had enacted a law 'giving the probate court appellate júrisdiction over cases originating in the justice’s court. After setting out extracts from this statute, the court says:
“Sufficient is here quoted from that act to indicate generally the distribution of the judicial power among the several courts created thereby, and the character and the extent of the jurisdiction with which those inférior courts are invested, as well as the authority under which *405the legislature attempted to clothe the probate courts with appellate jurisdiction. In other words, a complete judiciary system was by that act established, with the general nature and extent of the jurisdiction conferred upon each branch thereof either declared by the express terms of the act itself, or by the terms by which those courts are designated. * * The conclusion from the foregoing is then but reasonable and proper that when Congress used the terms by which they designated the several courts they established in these territories, and in distributing the power among them, they intended to and did use these terms by which these courts are denominated with reference to their well-known and uniformly accepted definition, and they intended to confer upon and invest these courts, respectively, with such jurisdidfon and power only as legitimately and properly belongs to them, and as indicated by their several titles.”
The same doctrine of restricting territorial' courts to the jurisdiction allotted to them by the- organic act is announced in People v. Du Rell, 1 Idaho, 44.
A very similar statute, organizing the government of the territory of Kansas, was construed by the Supreme Court there, in Locknane v. Martin, McCahan (Kan.) 60. Rehearsing the provisions of the statute involved, and descanting upon the duties of those who administer the government, the court goes on to say:
“They have no right to enlarge upon the powers therein imparted, or change them so as to allow or permit one department of the government thereby created to encroach upon the legitimate province .of another; nor can the peculiar arrangement and characteristics of either of those departments, as fixed by this law, be altered or in any manner changed by adding thereto or transferring the attributes and powers, which properly belong to one, from it to any other branch or portion of the same department; nor can the peculiar jurisdictional sphere of action of any of the branches or divisions of the same department, as organized by this law, be increased or diminished, so far as the province of its power is concerned. Each department is required to act within its own limits and *406sphere of organic power; and, where the powers created for any one of the principal departments are, by this fundamental law, subdivided and, for the purposes of administration, distributed and appropriated to several tribunals in the same general department, the arrangement of distribution so made must be carefully observed and maintained by those who act officially in the affairs of the government thus created.”
The same principle is established by the Supreme Court of the United States, in Ferris v. Higley, 20 Wall. 375 (22 L. Ed. 383), in construing the act of Congress organizing the territory of Utah — a law practically identical with the Oregon act on the points under consideration. McCray v. Baker, 3 Wyo. 192 (18 Pac. 749) ; Webster v. Seattle Trust Co., 7 Wash. 642 (33 Pac. 970: 35 Pac. 1082).
The national Congress, by the act in question, arranged and adjusted the judicial powers of the territorial government of Oregon, giving certain prerogatives to each of the courts mentioned. Ex vi termini, the probate courts had the authority to take proof of wills. The district courts were charged with the powers usually exercised by the circuit and district courts of the United States. Neither of those courts of the general government ever had jurisdiction to take proof of wills, at least as between contesting parties, all of whom were residents of the territory, and hence not affected by diverse citizenship. It was certainly inconsistent with the provisions of that statute for the legislature to attempt to readjust the judicial powers by giving to the district court authority by an original proceeding to take anew the probate of a will and determine the validity of such a document. If the lawmaking power could take from the probate court part of its well-known jurisdiction in the authentication of wills and give it to the district court, it would have been equally proper to vest the probate court with the appellate jurisdiction denied in the cases already cited. *407The act itself declares the condemnation of such inconsistent legislation, and pronounces it utterly null and void. The conclusion is that the act of December 15, 1853, so far as it confers authority upon the district courts to take probate of wills, was void, being inconsistent with and in derogation of the act of Congress organizing the territorial government of Oregon. The petitioner here can take nothing on account thereof, and it is not to be considered as an element in the determination of what is meant by a jury trial as contemplated in our State Constitution.
8, 9. Again, conceding that such an act could be regularly passed, it was equally competent for the legislature which made it, or for the people in ordaining a constitution, to make provision for its repeal. It was an expansion of the common-law rule about trial by jury, and could be retracted in any event so long as trial by jury, as known at common law, was unimpaired in litigation to which it was applicable. The constitution fixed the status of such legislation by declaring in Section 7 of Article XVIII that “all laws in force in the territory of Oregon when this constitution takes effect, and consistent therewith, shall continue in force until altered or repealed.” In consonance with the authority thus reserved, the territorial act under consideration was repealed by the enactment of the Code of Civil Procedure, which granted to the county court exclusive jurisdiction to take proof of wills. Section 936, L. O. L. Notwithstanding any territorial legislation, it was competent for the people to provide in their constitution, as they did, for a county court having superior jurisdiction as a court of probate. The people also had authority to retain as they did, in their fundamental state law the right to repeal territorial laws on the subject of wills, and to say that the jurisdiction of the county court in respect to them *408should be exercised after the manner of courts of equity. (Section 1135, L. O. L.) wherein there is no jury, except at the discretion of the chancellor, and then only in an advisory capacity. That the county court is one of exclusive and superior jurisdiction in the probate of wills is taught by many decisions of this court, among which are Tustin v. Gaunt, 4 Or. 305; Monastes v. Catlin, 6 Or. 119; Lawrey v. Sterling, 41 Or. 518 (69 Pac. 460).
10. It remains to consider whether proceedings in probate under the system of jurisprudence in this State are “civil cases” in which “the right of trial by jury shall remain inviolate.” It cannot be denied that in the most general classification of cases into civil and criminal the probate of wills would be in the category of civil cases. But in respect to the mode of trial there has always been a further distinction between cases on the law side of the court and those in equity; civil cases, strictly speaking, being those at law. This distinction is recognized in a certain sense in the original Article VII of our State Constitution, Section 12 of which reads thus in part:
“The county court shall have the jurisdiction pertáining to probate court * * and such civil jurisdiction not exceeding the amount of five hundred dollars and such criminal jurisdiction not extending to death or imprisonment in the penitentiary as may be prescribed by law. * *”
If the people had intended to include the probate of wills in the category of “civil cases,” they would not have mentioned probate jurisdiction separately in the section above noted. The term “civil jurisdiction” would have been sufficient for 'all purposes.
In Morgan’s Estate, 46 Or. 233, 235 (77 Pac. 608: 78 Pac. 1029), wherein were involved claims amounting to more than $3,000 against the estate, Mr. Justice Bean, considering the section, said:
*409“It is argued that the examination and allowance of a claim against an estate * * is the exercise by the county court of civil, as distinguished from probate, jurisdiction, being therefore limited to claims which do not exceed $500. In our opinion, this view is erroneous. By the constitution, county courts are vested with the jurisdiction pertaining to courts of probate, and the legislature is authorized to confer upon them limited civil and criminal jurisdiction. The two jurisdictions, however, are as separate and distinct as if conferred upon separate tribunals.”
In State v. McDonald, 55 Or. 419, 434 (103 Pac. 512: 104 Pac. 967: 106 Pac. 444) in an opinion by Mr. Justice Slater, this court makes jury trial as of right a distinguishing characteristic of actions at law.
In State ex rel. v. Mann, 76 Wis. 469 (45 N. W. 526: 46 N. W. 51), the question was the meaning of a clause of the constitution of that state to the effect that “the legislature shall impose a tax on all civil suits commenced or prosecuted in the municipal, inferior or circuit courts.” The court in construing this clause employed this language :
“But another and conclusive reason why the tax here imposed cannot be justified under the section of the constitution quoted is that the settlement of estates in courts having probate jurisdiction is essentially proceedings in rem, and not ‘civil suits commenced and prosecuted,’ within the meaning of the constitution. ' It is upon this theory that the federal courts have uniformly disclaimed jurisdiction in probate matters, since such jurisdiction is not conferred by the words, ‘the judicial power shall extend to all cases in law and equity arising,’ etc. Section 2, Article III, Constitution of United States.”
It is decided in Powell v. Powell, 104 Ind. 18 (3 N. E. 639) ; Grand Lodge v. Elsner, 26 Mo. App. 108; Isaacs v. Tinley, 58 Ga. 457, and Gilbert v. Thomas, 3 Ga. 575, that equity suits are not “civil cases,” within the meaning of the term used in the Bill of Rights. The same rule is *410directly applied to probate of wills in Welch’s Will, 69 Vt. 127 (37 Atl. 250), and Cartwright v. Holcomb, 21 Okl. 548 (97 Pac. 385).
Mr. Justice Miller, in Ferris v. Higley, 20 Wall 375 (22 L. Ed. 383), says of probate courts:
“Such courts are not in their mode of proceeding governed by the rules of the common law. They are without juries, and have no special system of pleading.”
Again, in the language of Mr. Chief Justice Appleton, in Bradstreet v. Bradstreet, 64 Me. 204, 209:
“Courts of probate are of special and limited jurisdiction. Their proceedings are not according to the course of the common law. They have no juries. Neither party upon appeal can claim, as a matter of right, a trial by jury. The judge of the appellate court may form an issue when, in his judgment, any question of fact occurs proper for a trial by jury, and not otherwise. The issue is to be formed and tried at law, but, as in equity, to inform the conscience of the court and under its direction.”
Much has been said about the issue devisavit vel non being always decided by a jury at common law, and so, indeed, it was in all actions at law where the will was called in question; but in equity, like any other issue there, it was submitted to a jury only in the discretion of the chancellor to inform his conscience. For instance, a testator had devised his lands to the exclusion of his heir, the latter would bring his action of ejectment against the devisee in possession, who, to maintain his title, would be put to proof of the will, as a grantee would of a deed, and the validity of the will would be determined by the jury as an incident to the main issue. On the other hand, a devisee in possession might maintain against the heir a bill in equity like our modern suit to quiet title, wherein the validity or authenticity of the will would be involved, but in which the issues would be determined by the chan*411cellor as in other suits. Treating of such suits, Mr. Pom:eroy says:
“The sole ground of this jurisdiction in England was a condition of the law which does not, exist in any American state, and no longer exists in that country. Until the statute creating the probate court (about 1857, 20 & 21 Viet. c. 77), there was no jurisdiction whatever to admit a will of land to probate; the only mode of testing the validity of such will was by an action of ejectment between the heir and devisee. If the devisee is in possession, he cannot, of course, bring an action of ejectment, but must await an action brought by the heir. For this reason, to enable the devisee to test the validity of the will at once, and to relieve him of the cloud hanging indefinitely over his title from the heir’s adverse claim, the jurisdiction described in the test exists. No such reason exists in this country. A will of land, as well as one of personal property, may be admitted to probate, and in some states the probate is conclusive upon all parties. The devisee can therefore at any time establish the validity of the will in the probate court, and is under no possible necessity of resorting to equity for such relief. On the contrary, the doctrine seems to be general, if not universal, throughout the states that a court of equity will not recognize nor act upon a will of land or of personalty until it has been admitted to probate.” 3 Pom. Eq. Jur. § 1158, note 3.
Such is the rule in this State. Willamette Falls, etc., Co. v. Gordon, 6 Or. 175; Jones v. Dove, 6 Or. 188.
11. In the endeavor to escape the effect of the statute (Section 1135, L. O. L.) requiring the county court to proceed as in equity rather than at law, contention was made at the argument for a distinction between mere proof of a will in common form and a proceeding like the present one to set it aside; but such a distinction is not well founded in reason. In either case the proponent must prove the will. The burden is upon him, whether the proceeding be ex parte, or upon an issue raised between adverse suitors: Hubbard v. Hubbard, 7 Or. 42; *412Clark v. Ellis, 9 Or. 128; Mendenhall’s Will, 43 Or. 542 (72 Pac. 318: 73 Pac. 1033) ; Pickett’s Will, 49 Or. 127 (89 Pac. 377). The question is always the same, whether the litigation be amicable or adverse, namely, the proof of the will.
No matter whether the proceeding is for probate of the will in common form or in solemn form, whether ex parte or contested, whether it was commenced in the probate court or the district court of the territorial regime, or in the present day county court, all that is accomplished in any of the proceedings in question is that the proponent, with the affirmative of the issue resting upon him, either succeeds or fails in his attempt to prove the will. From whatever point we view the case, it is still the probate of a will — neither more nor less.
It is of no consequence whether the statute of December 15, 1853, was inconsistent or not with the act of Congress organizing the government of the territory, or whether or not it had the approval of the national legislature. The constitution adopted by the people in 1857 had the approval of Congress on the admission of the State into the Union, and by reason thereof superseded all previous legislation of every kind, except as stated in its bwn terms. It was in effect a congressional enactment itself. Whereas at best under the territory the probate court and the district court had concurrent jurisdiction of the probate of wills, so that any one interested might litigate such matters in either court, the people by their constitution called into being the circuit court and the county court; both of them being courts of record having general jurisdiction. They reserved the right to define, limit, and regulate that jurisdiction by law in accordance with the constitution. Section 1, Article VII, Constitution of Oregon. By Section 12 of the same article they gave the county court what has always been con*413strued to be exclusive jurisdiction pertaining to probate courts, and, having carved this much out of the mass of original judicial authority, they bestowed the remainder upon the circuit court in Section 9. All this had the approval of Congress. Not resting with this ademption of the at least doubtful jurisdiction of the district court over wills by vesting it exclusively in a kind of court which never had a jury, unless at its own discretion, to wit, a county court sitting as a probate court, the legislative power of the State, in more explicit terms in the Code of Civil Procedure, so defined, limited, and regulated the constitutional power of that court as to give it, in so many words, exclusive jurisdiction to take proof of wills. Section 936, L. O. L. Not only so, but the legislature went further and required that court to proceed as in equity, as distinguished from the conduct of an action at law. Section 1135, L. O. L. Having already, in Section 12 of Article VII, distinguished between probate and civil jurisdiction, effectually taking the former out of the category of “civil cases” mentioned in Section 17 of the Bill of Rights, the people, by their representatives, in this manner gave strong legislative construction to their constitution against a jury trial as of right in the probate of a will by classing such litigation as an equity proceeding. This legislation conforms to the State Constitution which Congress approved, so that putting the proof of wills into equity, with all its incidents of trial, was a proper exercise of legislative power, irrespective of what had existed before.
The conclusion is that, in lieu of the old probate court, the constitution established a county court, which, like other courts named in Section 1 of Article VII, “shall be courts of record, having general jurisdiction to be defined, limited and regulated by law in accordance with this constitution.” To this court the people by their organic *414act, in Section 12 of the same article, committed the jurisdiction pertaining to courts of probate, with its incidents of trial, and distinguished it from civil jurisdiction as contemplated in Section 17 of Article I, preserving the trial by jury in civil cases. It was quite in harmony with this fundamental law for the legislative assembly afterwards to define, limit, and regulate the jurisdiction of that court, so that its proceedings should be “in the nature of a suit in equity, as distinguished from an action at law.” To this result the territorial legislation of December 15, 1853, forms no obstacle, both because it was void as inconsistent with the law organizing the territory of- Oregon, and for the reason that it was superseded by the constitution, giving such jurisdiction to another court, and, further, that the people retained the right to repeal it, and did so by the adoption of the Code of Civil Procedure in 1862. This code has been recognized and acted upon for a half century without question until the filing of this petition. As said by Mr. Justice Boise, in Tribou v. Strowbridge, 7 Or. 156, 159:
“Was there doubt as to the constitutionality of this statute, it would, under the circumstances and the sanction of long usage, have to be solved in favor of the statute.”
It follows that in this litigation, in the nature of a suit in equity, neither party could, as a matter of right, demand a jury trial.
We adhere to the former decision. Reversed.