(concurring in part and dissenting in part). I agree with the majority’s holding that trustee prudence is not an issue triable by a jury. I write separately because I disagree with its reasoning in support of that conclusion. I also disagree with the majority’s holding that trustee good faith is an issue for the jury. I would hold that, with respect to inter *389vivos trusts, both trustee prudence and trustee good faith are matters for the judge, not the jury, under the Revised Probate Code, MCL 700.1 et seq.; MSA 27.5001 et seq.
The question presented, whether these remainder beneficiaries of an inter vivos trust have a right to a jury trial of certain issues, should be determined by reference to MCL 600.857(1); MSA 27A.857(1).
Subsection 857(1), the only provision that directly addresses when a party before the probate court is entitled to a jury trial on a particular issue, provides in relevant part:
If a parly to a proceeding in the probate court would have had a right before January 1,1971 to demand to determine a particular issue of fact in the circuit court upon a de novo appeal from that proceeding to the circuit court, that party shall on and after January 1, 1971 have a right to demand a jury to determine that issue of fact in the probate court proceeding. [MCL 600.857(1); MSA 27A.857(1).]
According to this subsection, a party in probate court only has a right to jury trial of a factual issue if such a right existed before 1971 on de novo appeal from the probate to the circuit court.1
In 1978, when the Legislature enacted the Revised Probate Code, MCL 700.1 et seq.; MSA 27.5001 et seq., subsection 857(1) remained unchanged. However, the *390Legislature enacted MCL 700.805(1); MSA 27.5805(1), which states in relevant part:
The probate court has exclusive jurisdiction of proceedings initiated by interested parties concerning the internal affairs of all trusts. Proceedings which may be maintained under this section are those concerning the administration and distribution of a trust, the declaration of rights, and the determination of other matters involving trustees and beneficiaries of a trust. [MCL 700.805(1); MSA 27.5805(1).]
As the majority recognizes, before 1978, inter vivos trusts were subject to circuit court, not probate court, jurisdiction.2 Therefore, subsection 805(1) changed original jurisdiction of inter vivos trusts. However, it did not address when a right to a jury trial was available in probate court. Rather, the Revised Probate *391Code still relies on subsection 857(1), which, in turn, requires an historical analysis, with 1971 as the point of reference, to determine whether a particular issue is triable by a jury.
In this case, that historical analysis reveals that a right to a jury trial does not exist in probate court for inter vivos trust issues, including those at hand, trustee good faith and prudence. Before 1971, there was no right to a jury trial of any factual issue regarding an inter vivos trust because they were equitable instruments. Moreover, the circuit court had jurisdiction over inter vivos trusts until 1978, when the Probate Code was revised to provide the probate court with jurisdiction over all trusts. Section 857 merely preserves a right to a jury trial in those probate cases that would have had such a right in a de novo appeal before 1971. Inter vivos trusts were neither within the jurisdiction of the probate court nor subject to jury trials before 1971. Therefore, I would conclude that the jury trial provision, subsection 857(1), does not grant a right to a jury trial with respect to inter vivos trust issues, including those at issue in this case, trustee prudence and good faith.
For these reasons, I disagree with the majority’s conclusion that, with the enactment of subsection 805(1), “and by retaining the jury trial provision of MCL 600.857(1); MSA 27A.857(1), the Legislature abolished all distinctions previously associated with inter vivos and testamentary trusts, allowing probate courts jurisdiction over all trusts.” Ante at 388. This conclusion ignores the plain language of subsection 857(1), which preserves the distinctions that existed before 1971. Indeed, I find it significant that the Legislature did not amend subsection 857(1), or otherwise *392curtail the 1971 act provisions, when it amended subsection 805(1) in 1978.
I also find that the majority is incorrect in its assertion that the Legislature would have “omitted the jury trial provision when it revised the Probate Code in 1978” had it intended to preclude juries in inter vivos trust matters.3 As discussed above, subsection 857(1) did not expand the right to a jury trial beyond its 1971 scope. The only reason the Legislature would need to amend subsection 857(1) would be if it wished to extend the right to a jury trial of certain issues regarding inter vivos trusts as well.
There simply is no clear manifestation of a legislative intent to destroy the long-recognized distinction between equitable, inter vivos trusts and legal, testamentary trusts.4 Rather, I would find that subsection 857(1) manifests an intent to preserve this distinction even though all trusts are now under probate court jurisdiction by virtue of MCL 700.805(1); MSA 27.5805(1).
For these reasons, I would find that neither the prudence nor the good faith of an inter vivos trustee are issues triable by a jury because of the express provisions of MCL 600.857(1); MSA 27A.857(1). I, *393therefore, concur only with the majority’s holding that the prudence of the trustee of an inter vivos trust is not an issue for the jury. I dissent because I would further hold that the good faith of an inter vivos trustee is similarly not an issue for the jury. Accordingly, I would reverse the decision of the Court of Appeals and affirm the probate court’s ruling that struck down the remainder beneficiaries’ jury demand and found the trustee acted with reasonable prudence.
Boyle and Taylor, JJ., concurred with Weaver, J.The Probate Code was amended, effective January 1, 1971, by 1970 PA 143. This amendment eliminated the right to de novo review of a probate court order by the circuit court. However, the act preserved the limited statutory right to a jury trial available in those circuit court appeals by providing that, if a jury trial was available on de novo appeal from the probate to the circuit court before 1971, then a jury trial was available in the probate court proceeding on that issue after 1971.
Because inter vivos trusts were nonstatutory instruments, only the circuit court, which had general powers over equitable matters, had jurisdiction over inter vivos trusts. MCL 600.601(2); MSA 27A.601(2). See, e.g., Detroit Trust Co v Blakely, 359 Mich 621; 103 NW2d 413 (1960). Moreover, inter vivos trust instruments were not recognized and governed by statutes, but were equitable instruments created by the common law. As equitable instruments, disputes over inter vivos trusts were for the judge to resolve, not the jury. Abner A Wolf, Inc v Walch, 385 Mich 253, 261; 188 NW2d 544 (1971).
The probate court’s authority was and is statutory in nature; it has only those powers expressly granted by the Legislature. Kurant v Kent Probate Court, 305 Mich 411, 415; 9 NW2d 824 (1943). See also Chambers v Chambers, 207 Mich 129, 134; 173 NW 367 (1919); Van Etten v Manufacturers Nat’l Bank of Detroit, 119 Mich App 277, 286-288; 326 NW2d 479 (1982) (equity jurisdiction has been lodged in circuit courts since 1846 and the Probate Code has set forth only specific instances in which the probate court has jurisdiction over equitable matters).
Before 1979, MCL 701.19(2); MSA 27.3178(269)(2) gave the probate court jurisdiction over decedents’ estates, guardianships, and “all trusts and trustees in the execution of wills and administration of estates of deceased persons.” Probate courts, therefore, had no jurisdiction over an inter vivos trust, which is created, and becomes effective, during the grantor’s lifetime, as opposed to a testamentary trust that is contained in a will and goes into effect at the testator’s death. 76 Am Jur 2d, Trusts, § 11, p 41.
Ante at 386.
This Court has recognized that the “right to have equity controversies dealt with by equitable methods is as sacred as the right of trial by jury,” 385 Mich 260, and that “the distinctions between law and equity must continue to be recognized for the purpose of preserving constitutional rights to trial by jury in legal matters and trial by court in equity matters.” Id. at 261. Moreover, I would agree with the Court of Appeals claim that “matters in equity are not entitled to jury trials unless so preserved or created by the Legislature.” In re Forfeiture of $1,159,420, 194 Mich App 134, 154-155; 486 NW2d 326 (1992). In this case, there is no such clear indication that the Legislature chose to recognize a right to a jury trial of certain inter vivos trust issues for the first time in our state’s history.