Cockrill v. Cox

Robertson, Associate Justice.

All the constitutions of the Republic and State of Texas have preserved the right of trial by jury, in the same language. Const. of Republic, 9th clause of Declaration of Rights ; Const, of 1845, sec. 12, art. 1; Const, of 1866, sec. 12, art. 1; Const, of 1869, sec. 12, art. 1; Const, of 1876, see. 15, art. 1.

In the Constitution of 1845, the provision that this right should “remain inviolate,” was deemed a sufficient security of it in all cases in the district court, except causes in equity, for which a special clause was introduced. Sec. 8, art. 4.

The act of 1848 gave us our first complete system of probate jurisprudence, and, under it, the initial proceeding to probate a will was in the county court, which, as then organized, had no power to impanel a jury. Pas. Dig., art. 1261. A contest could be had in the county court, and either party could annul the result by an appeal to the district court (P. D. 1267, 1384), or a contest could be originally inaugurated in the district court, and the contest there, whether the jurisdiction was acquired by an original proceeding or by appeal, by the uniform practice, without the authorization of an express statute or other constitutional provision than those adverted to, was tried by a jury, unless the intervention of a jury was expressly waived. Parker v. Parker, 10 Tex. 85; Crain v. Crain, 21 Tex. 790; Vickory v. Hobbs, 21 Tex. 571; Tynan v. Paschal, 27 Tex. 287.

The constitution of 1869 ordained that the right of trial by jury should “remain inviolate)” (sec. 12, art. 1); that, in all cases of law or equity, involving more than $10.00, the right should be preserved (sec. 16, art. 5); and 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 * * * * * ” By this constitution exclusive original jurisdiction of probate matters was conferred upon the district court (sec. 7, art. 5), and, to adapt the procedure to the organic changes, the probate law of 1870 was enacted. In this law it was stated, that “there is no trial by jury in matters of probate, except when expressly provided by law. ” P. D., art. 5481.

In the case of Davis v. Davis, 34 Tex. 1, construing the law and the constitution, it was held that a contest over the probate of a will, without expressly considering whether it was a case of law or equity, or the parties to it could be called plaintiff or defendant, must be tried by jury, if demanded. This construction was accepted and acted upon until the law was repealed, and the constitution of 1869 was superseded by that of 1870. Renn v. Samos, 33 Tex. 763; Denson v. Beazley, 34 Tex. 191; Gardner v. Spivy, 35 Tex. 509; Linny v. Pelonquin, 35 Tex. 36; Beazly v. Denson, 40 Tex. 416; Johnson v. Brown, 51 Tex. 65.

As far as the history of the practice is preserved in reported cases, the right of trial by jury, in such contests as this, has been recognized and exercised under all the constitutions and laws that, at different times, have prescribed the jurisdiction and regulated the procedure of our courts. In such cases, in other states, by statute or the usage of courts, directly, or upon feigned issues, at some stage of the proeeeding, a jury is allowed to pass upon the facts. Acts of Leg. of Col. 1867, 1868; Benoist v. Murrin, 58 Mo. 318; Williams v. Robinson, 42 Vt. 658; Boyd v. Boyd, 66 Pa. St. 292; McGinnis v. Kempsey, 27 Mich. 363; Boardman v. Woodman, 47 N. H. 120; Glancy v. Glancy, 17 Ohio St. 134; Howland v. Taylor, 53 N. Y. 627.

A provision preserving the right of trial by jury, expressed in substantially the same language, it is said, is to be found in all the state constitutions, ¡and it has been uniformly construed to perpetuate the right in the cases in which it exists, under the laws in force and practice prevailing at the date of the adoption of the particular constitution. Cooley on Const. Lim. 506. Thus, when the constitution oí Michigan was adopted, a party in possession of land was entitled to a jury trial of a suit against him, involving the title. It was held that the legislature could not deprive him of this right by authorizing his adversary to proceed against him by bill to remove cloud. Tabor v. Cook, 15 Mich. 322.

In Indiana, at the date of her constitution, a party was entitled to have a jury assess the damages in condemnation proceedings, and this right was held to be inviolable. Ry Co. v. Heath, 9 Ind. 558; Dane Co. v. Dunning, 20 Wis. 221; 41 N. H. 550; Sands v. Kunbark, 27 N. Y. 147; County v. Morrison, 22 Minn. 178.

Pennsylvania is only, apparently, an exception; for, whilst the right is determined under the peculiar phraseology of her constitution by the status quo of 1776, yet, the power of the legislature to confer and cut off the right, in certain cases exercised under the earlier constitutions, was considered as approved, in not being expressly denied in the constitution of 1838. Byers v. Commonwealth, 42 Pa. St. 93.

The provision in the constitution of 1876, that the right of trial by jur> shall remain inviolate, must be considered as perpetuating the right in the cases, in which, at the date of its adoption, it had been so universally recognized and firmly established, as in the contests arising over the proof of wills.

Construing the statute (R. S. 1803), in the light of the interpretation of substantially the same language, in the case of Davis v. Davis, 34 Tex. 1, and of the principle that it should be held void only to the extent of the conflict with the higher law, we can see no constitutional objection to the refusal of a jury in the contest in the county court. The right of jury trial remains inviolate, though denied in the court of first instance (in civil cases), if the right to appeal and the jury trial on appeal are secured. Cooley on Const. Lim. 507.

It is said, however, _that in this case the district court sits purely as a court of probate. There is no appeal from the district court trying the contest in the first instance, to the district court as the final trial court in probate matters. It results that in such cases the preliminary trial in the county court is dispensed with, and the final trial provided for on appeal in other cases, is had originally, when the case comes originally to the district court. The law to be applied to the case is the same in the county and district courts. Bradley v. Love, 60 Tex. 476. But, what the case is, to which to apply the law, is determined by each by the means and methods peculiar to itself-When a case is appealed from the justice’s to the county court, the jury is charged and a trial is had in accordance with the practice of the county court. If the county judge is disqualified in the case, and it is transferred to the district court, it is tried before a jury of twelve and not six men, and the practice of the district court prevails. In Texas, “the memory of man runneth not to the contrary ” of this procedure in courts to which a cause is taken for trial de novo.

We think the appellee’s demand for a jury in the court below was properly granted. There was no error in allowing the witness, Tuttle, to state his opinion of Mrs. Byler’s capacity to make a will, after he had testified to the facts upon which the opinion was predicated. Garrison v. Blanton, 48 Tex. 301.

Was the will signed, attested and intended, were the three issues submitted to the jury in the court below, upon each of which the finding was against the appellant. It was conceded, in argument, that upon the last issue, involving the testamentary capacity of Mrs. Byler, there was a conflict of testimony sufficient to protect the verdict under the well settled rules of this court. It is also obvious that if this issue was fairly submitted to the jury, and the finding upon it is sustained, any error committed by the court or jury upon the other issues, could not affect the result, unless the finding on the other issues is so clearly wrong as to indicate that the appellants have not had a fair trial upon the whole case.

There was no error in the refusal of the third special charge requested by appellant, as the substance of it was embraced in the court’s definition of testamentary capacity.

To the charge, as given, it is objected that the court did not instruct the jury that less capacity would suffice to make a valid will than would be required in making contracts, and that, in determining Mrs. Byler’s capacity, the jury should look to her acts in the preparation of the will, and the condition of her mind at the time of its preparation, as well as at the moment of final execution. Without now passing upon propriety of such instructions, it must be. a sufficient answer to the objection, that no special charges upon these points were requested. The error, if it was error, was one of omission, and not of commission, and cannot be considered by this court, unless the party complaining, by asking a special instruction, shows that he is not speculating on the chances of a favorable verdict. Beazley v. Denson, 40 Tex. 434.

We find no error in the charge of the court in submitting to the jury the controlling issue.

Bor, can we justly conclude that the jury, in determining the other issues against the appellants, manifested passion or prejudice, or other motive or influence, inconsistent with a fair and deliberate consideration of the case submitted to them. To have a valid manual execution and a valid attestation of the will, under the charge of the court, Mrs. Byler must have possessed the faculty of consciousness and the capacity to understand that she was signing a will and having it attested. To this extent, the same question as in the third issue was involved, and upon it, there is the same conflict of evidence.

We find nothing in the record to justify us in disturbing the judgment, and it must, therefore, be affirmed.

Affirmed.

[Opinion delivered February 2, 1886.]