Hawke v. Hawke

HERRICK, J.

At the close of the evidence upon the trial of this action, the counsel for the proponents requested the court to instruct the jury to find a verdict “that the will and codicil of Edward H. Hawke in evidence are his last will and codicil, upon the ground that the record given in evidence establishes the validity of the probate of said will and codicil, and there is not any evidence sufficient to submit to the jury any question as to the due attestation and execution or validity of such will or codicil.” The court granted the motion. The most serious question involved in this appeal is as to the power of the court, in cases of this kind, to direct a verdict by the jury. The action is one brought to determine the validity of the will of Edward H. Hawke, deceased, and is brought under the provisions of section 2653a of the Code of Civil Procedure, as amended by chapter 591 of the Laws of 1892. That section provides for the determination of the validity of a will by an action in the supreme court, and a trial by jury, and, among other things, provides as follows:

“The Issue of the pleadings In such action shall be confined to the question of whether the writing produced is, or is not, the last will or codicil of the testator, or either. It shall be tried by a jury, and the verdict thereon shall be conclusive as to real or personal property, unless a new trial be granted, or the judgment thereon be reversed or vacated. ”

For the purposes of this discussion, it is unnecessary to quote' any other portion of the section. It is contended that under this section the court has no power to direct a verdict; that the words “it shall be tried by a jury, and the verdict thereon shall be conclusive,” excludes the court from exercising such power; that it makes the jury absolute, except where a new trial is granted, or the judgment entered upon their verdict is reversed or vacated. I think this is a misconstruction of the law, and comes from a too literal reading of its provisions. Such a construction, followed to its legitimate and logical results, would leave the court with no power upon the trial except to preserve order. The section must be read in connection with other sections of the Code, and also in connection with what existing laws have determined a trial by jury to be; for it seems to me that the legislature intended to do no more than provide a common-law jury trial, to be governed by the same rules that are applicable to all jury trials at common law. “Shall be tried by a jury” does not mean that a jury of 12 men shall determine all the questions involved, but it means a trial by a jury pursuant to existing laws; that means a jury presided over, advised and directed by, a court, the court being the judge of the law, and the jury of the facts. “The purpose of a jury trial is, that the experience, intelligence, and judgment of twelve men may be availed of to settle disputed questions of fact. The duty of the judge presiding at the trial is * * * to determine whether a case is presented fit for the deliberation of the jury.” Johnson v. Railroad Co., 20 N. Y. 65-70. And the preliminary question that arises in all cases tried by jury is whether the evidence is sufficient for the jury to find a verdict thereon in favor of the party producing it; and that question is a question of law for the court. The verdict that is to be found by the-jury is to be arrived at pursuant to existing laws, and in arriving, at their decision the jurors must be governed by the law of the land;. and what that law is must be determined for them by the court. It cannot be presumed that the legislature intended anything but a trial by jury according to existing laws governing trials by jury-in common-law actions. The provision in the statute that the-verdict shall be conclusive is the same as is found in section 970-of the Code of Civil Procedure, and is in fact but a statutory enactment of what has long been the law relating to all trials by jury at common law. The use of these words in the statute, it seems to me, was intended, not to exclude the court from any of the powers and functions that it exercises in the trial of jury cases, but rather to emphasize the fact that these actions are to be tried in the same manner that other actions are triable, where, under the constitution, they must be tried by a jury, and to draw the distinction between cases of this kind and cases in equity that are tried by a jury, where the findings of the jury are simply advisory to the court, to be followed or disregarded as to the court seems best, and which are conclusive upon no one. They are also undoubtedly used to distinguish the decision arrived at upon such a trial from the • decision of the surrogate upon the probate of a will, which is not conclusive; the probate of a will by a surrogate being revocable, upon the petition of a party interested, at any time within a year after-such probate, and, as to real estate, the probate of a will being only presumptive evidence of the matters determined by the surrogate, any party interested having the right to raise the question of the validity of the will in a subsequent action tried before a jury, where-real estate is involved, notwithstanding such probate. For these-reasons I think that in an action brought under section 2653a of the Code of Civil Procedure, the court may, in a proper case, direct a verdict, the same as in an action on a promissory note, or any other-action specified in sections 968 and 970 of the Code of Civil Procedure.

Upon the question as to whether there was sufficient evidence produced to warrant the jury in finding a verdict thereon adverse to-the validity of the will, a somewhat careful consideration of such-evidence satisfies me that the trial court was right in its determination, and I see no occasion for attempting to add anything to the very careful review of the evidence made by such court in directing a verdict.

For these reasons the judgment must be affirmed, with costs.

PUTNAM, J., concurs.