specially concurring.
Bared to its essentials, the reasoning of the prevailing opinion is that the 1979 amendments to ORS 113.055(4) and 111.205, which removed the references to suits in equity from those statutes, do not eliminate our authority to conduct de novo review in will contests, because the legislature did not intend the amendments to have that effect. I agree that the legislature probably did not so intend, but its intent is irrelevant. The language that remains in the statutes after the 1979 amendments is unambiguous, and the language that was removed from the statutes was the only source of our authority to review will contests de novo. The prevailing opinion’s conclusion is the functional equivalent of holding that a repealed statute remains in effect, because the legislature repealed it accidentally.
De novo review is governed by statute in Oregon. At least at this point in history, de novo review has no constitutional or other nonlegislative origins that require the legislature to authorize it or the appellate courts to exercise it. The legislature may create or abolish de novo review and may specify the kinds of cases to which de novo review applies. Once the foregoing elementary principles are recognized, the syllogism that resolves this case is a starkly simple one: ORS 19.125(3) directs this court to try suits in equity anew upon the record; ORS 113.055(4) and 111.205 used to categorize will contests as suits in equity; however, the 1979 amendments to those statutes removed will contests from that category. Consequently, they are no longer reviewable as suits in equity under ORS 19.125(3). See also ORS 111.105(1).
The prevailing opinion ascribes significance to the fact that, historically, will contests were equitable in nature. If the opinion means to suggest by that that a proceeding’s origin in the courts of chancery makes its equitable character eternally immutable, I disagree. The history of this state demonstrates the contrary. Will contests have been governed by statute in Oregon since territorial times. Not all of the territorial statutes treated will contests as suits in equity, and *685at least one territorial law provided for jury trials in will contests and limited appeals in them to matters of law. See, generally, Stevens v. Myers, 62 Or 372, 400-03, 121 P 434, 126 P 29 (1912). Will contests have not been regarded as equitable in this state because of something inherent in their nature or their origin. They have been treated as equitable through most of the state’s history only because they have been designated as such by statute. However, the legislature has not always so designated them and, in 1979, it removed that designation from the relevant current statutes.1
The prevailing opinion makes a number of other points that I address only briefly. I do not agree with the conclusion in that opinion that any constitutional problems would result from the elimination of de novo review in will contests. See City of Klamath Falls v. Winters, 289 Or 757, 619 P2d 217 (1980), appeal dismissed 451 US 964 (1981). However, I think the constitutional analysis is beside the point in this case. If the legislature acted unconstitutionally by providing de novo review in other types of proceedings but eliminating it in will contests, the time for deciding that would arise in appeals in those other types of proceedings if the constitutionality of our statutory authority to conduct de novo review were to be challenged there. The constitutional problem, if any exists, cannot be resolved by our exercising de novo review when we have no statutory authority to do so.
The prevailing opinion points out that the Council on Court Procedures is expressly denied the authority to adopt rules of appellate procedure. ORS 1.735. That point is correct, but it too is irrelevant. ORS 113.055(4) and 111.205 were amended by the legislature, not the Council.
Similarly, it is not material to whether we have statutory authority to conduct de novo review in this appeal that the legislature did not alter the statutes, cited by the prevailing opinion, that relate to procedures in counties where *686probate matters are initially tried by the county court and are appealable to the circuit court and then to this court. Those statutes are not applicable here. If they do permit de novo review in the will contests to which they do apply, that anomaly shows nothing more than that the legislature’s failure to amend them was inadvertent or that it amended the statutes that do concern us here in an inadvertent manner. As noted earlier, what matters here is what the legislature clearly did, and not what it might have intended to do instead. Cf. Adamson v. California, 332 US 46, 64, 67 S Ct 1672, 91 L Ed 1903 (1947) (Frankfurter, J., concurring) (“What was submitted for ratification was [the proponent’s] proposal, not his speech”).
I conclude that the proper standard of our factual review in this case is the substantial evidence standard. I think there was substantial evidence to support the trial judge’s finding for the proponent, and I therefore concur with the prevailing opinion’s holding.
Joseph, C. J., and Warden and Van Hoomissen, JJ., join in this specially concurring opinion.The prevailing opinion suggests that, if we construe the 1979 amendments to ORS 113.055(4) and 111.205 as eliminating de novo review in will contests, de novo review of all traditionally equitable proceedings somehow disappears. That is not correct because, unlike will contests, most proceedings that have equitable historical origins, e.g., specific performance suits, have not been the object of legislative definition or redefinition. The historical equitable character of those proceedings therefore has not been altered by legislative action.