Page images
PDF
EPUB

If the matter is discretionary with the court to allow a jury trial, the findings of the jury are not binding upon the court, but it may ultimately determine for itself the issues in the case, either accepting the findings of the jury or ignoring them. If the findings of the jury are not accepted, mistakes of the jury or errors in submitting the matter to them are of little consequence. In most juris

dictions where the right to a trial by jury is granted by statute, the verdict of the jury is conclusive upon the court.85 In some jurisdictions, however, the verdict of the jury is merely discretionary.86 But even if the parties have the right to a trial by jury, this does not mean that the matter must necessarily be submitted to it, for the court has the same power in a will contest to direct a verdict as in ordinary civil actions.87 Although the right to a trial by jury exists, yet both parties may waive a jury trial and allow the issues to be tried by the court.88 § 1333. The Same Subject: What Issues Submitted to Jury. The practice is not uniform as to the manner in which the issues are submitted to the jury. In some jurisdica jury.- Estate of Dolbeer, 153 Cal. 652, 658, 15 Ann. Cas. 207, 96 Pac. 266.

84 Medill v. Snyder, 61 Kan. 15, 78 Am. St. Rep. 306, 58 Pac. 962.

85 Lanier v. Richardson, 72 Ala. 134; Matter of McDevitt, 95 Cal. 17, 30 Pac. 101; Brooks' Appeal, 68 Conn. 294, 36 Atl. 47; Estate of Allison, 104 Iowa 130, 73 N. W. 489; Backus v. Cheney, 80 Me. 17, 12 Atl. 636; Sumwalt v. Sumwalt, 52 Md. 338; Maier v. Wayne Circuit Judge, 112 Mich. 491, 70 N. W. 1032; Linney v. Peloquin, 35 Tex. 29.

86 Hudson v. Hughan, 56 Kan. 152, 42 Pac. 701; Newell v. Homer, 120 Mass. 277; Jones v. Roberts, 96 Wis. 427, 70 N. W. 685, 71 N. W. 883.

87 Snodgrass v. Smith, 42 Colo. 60, 15 Ann. Cas. 548, 94 Pac. 312; Hesterberg v. Clark, 166 Ill. 241, 57 Am. St. Rep. 135, 46 N. E. 734; Katz v. Schnaier, 87 Hun (N. Y.) 343, 34 N. Y. Supp. 315; Philips v. Philips, 77 App. Div. 113, 78 N. Y. Supp. 1001; Herster v. Herster, 116 Pa. St. 612, 11 Atl. 410.

88 Whipple v. Eddy, 161 III. 114, 43 N. E. 789.

tions the jury determines the single question of the validity of the will, reporting either for or against the instrument. 89 In other jurisdictions special issues are submitted to the jury and they must return a special verdict upon each issue submitted to them, upon which the judgment of the court must be rendered. Such special issues must be such that their determination will leave the court no office except to either declare for or against the will;91 and where such special issues are determined by the jury, no general verdict is authorized and furnishes no support for the judgment.92

§ 1334. Costs of Obtaining Letters Testamentary or of Administration Where Not Contested.

The law contemplates that the will of a decedent should be seasonably proposed for probate and that no unreasonable delay should occur. Likewise, letters of administration should within a reasonable time be obtained upon the estate of an intestate. Those entitled to letters are either named by the testator or prescribed by statute. Where application is made for letters testamentary or of

89 Moseley v. Eakin, 15 Rich, L. (S. C.) 324.

90 Cal. Code Civ. Pro., § 1314. 91 Estate of Benton, 131 Cal. 472, 475, 63 Pac. 775.

92 Estate of Langan, 74 Cal. 353, 355, 16 Pac. 188. See, also, Rich v. Bowker, 25 Kan. 7.

Under the Ohio statutes the va lidity of a will may be contested in a civil action and "an issue shall be made up, either in the pleadings or by an order on the journal, whether the writing pro

duced is the last will or codicil of the testator, or not, which shall be tried by a jury." The court held that the ordinary rules of pleading and procedure were inapplicable and that the issue prescribed by the statute could not be varied or restricted by averments in the pleadings, whether controverted or not. It was further held that evidence might be admitted relative to the statutory issue, although not alleged in the pleadings.-Dew v. Reid, 52 Ohio St. 519, 40 N. E. 718.

administration and such letters are granted without contest, the authorities agree that the cost and expense of obtaining the grant of probate or administration, including reasonable counsel fees, shall be considered as part of the costs of administration, and the one granted letters is entitled to credit in his account for moneys paid for such purpose.93

§ 1335. English Rule as to Taxation of Costs in Will Contests. In England, under § 5 of the Judicature Act, 1890, it is provided that "subject to the Supreme Court of Judicature Acts and the rules of Court made thereunder, and to the express provisions of any statute, whether passed before or after the commencement of this Act, the costs of and incident to all proceedings in the Supreme Court, including the administration of estates in trust, shall be in the discretion of the court or judge, and the court or judge shall have full power to determine by whom and to what extent such costs are to be paid."

Under Order LXV, Rules of the Supreme Court, rule 1, it is provided that "subject to the provisions of the Acts and these rules, the costs of and incident to all proceedings in the Supreme Court, including the administration of estates in trust, shall be in the discretion of the court or judge; provided that nothing herein contained shall deprive an executor, trustee or mortgagee, who has not unreasonably instituted or carried on or resisted any proceedings, of any right to costs out of a particular estate or fund to which he would be entitled according to

93 Williams v. Goude, 1 Hagg. Ecc. 610; Henderson v. Simmons, 33 Ala. 291, 70 Am. Dec. 590; Abila v. Burnett, 33 Cal. 658; Meeker v. Meeker, 74 Iowa 352, 7 Am. St.

Rep. 489, 37 N. W. 773; Estate of
Soulard, 141 Mo. 642, 43 S. W. 617;
Wills v. Spraggins, 3 Gratt. (Va.)
555.

the rules theretofore acted upon in the Chancery Division: provided also that, where any action, cause, matter, or issue is tried by a jury, the costs shall follow the event, unless the judge by whom such action, cause, matter, or issue is tried, or the court, shall, for good cause, otherwise order." Costs as between attorney and client for attorney fees are also covered by the above order and appendix N thereto.

The courts in England, however, prior to this time had in their decisions laid down general rules governing such matters of discretion regarding the taxing of costs, and which rules are still followed. Thus, if the cause of the litigation regarding the validity of the will arises because of some acts on the part of the testator or of the principal beneficiaries under the will, the costs may be charged to the estate. If the contestant has the means of knowledge and reasonable grounds to question the validity of the will either for lack of due execution, incapacity of the testator, or that the will was procured by fraud or undue influence, he may be relieved from being taxed with the costs of the successful litigant, in the event of a decision against him. Except in the instances just mentioned, the general rule is that costs are allowed to the successful party.94

§ 1336. The Same Subject: Illustrations of the Rule.

Instances of litigation growing out of the acts of a testator are such as where he has left his papers in such. a state of uncertainty and confusion that it is doubtful whether the instrument presented was intended as a will,

94 Mitchell v. Gard, 3 Sw. & Tr. 277; Twist v. Tye, (1902) P. 92; Page v. Williamson, 87 L. T. N. S.

146; Spiers v. English, (1907) P. 123.

[ocr errors]

or whether the testator intended to have it take the place of an earlier will.95 The uncertainty may likewise arise because of a testator by his actions having raised a reasonable doubt as to his testamentary capacity.96 In such cases the court will order the costs of both parties to be paid out of the estate. Where an executor in good faith defends the will, his costs will be paid out of the estate even in the event the will is declared invalid because of the testator's want of mental capacity;98 but if the executor had ample opportunity of discovering the mental incapacity of the testator and nevertheless attempted in the face of opposition to prove the will, he is not entitled to be paid his costs out of the estate where the will is rejected.""

Actions on the part of those receiving the bulk of the estate under the will have the same bearing as to costs as those of the testator. If their actions excite suspicion, result in delay or the like so that others interested have reasonable grounds to contest the validity of the will, the costs of litigation may be paid out of the estate since the loss falls principally upon the beneficiaries who caused the litigation. It is necessary, however, in order that the costs may be paid out of the estate and not by an

95 Mitchell v. Gard, 3 Sw. & Tr. 277; Jenner v. Ffinch, L. R. 5 Pro. Div. 106; Thorncroft v. Lashmar, 2 Sw. & Tr. 479.

96 Cousins v. Tubb, 65 L. T. 716; Roe v. Nix, (1893) P. 55.

97 See preceding citations.

98 Boughton v. Knight, L. R. 3 P. & D. 79. See, also, In re Prince, (1898) 2 Ch. 225; In re Clemow, (1900) 2 Ch. 182; Graham v. M'Cashin, (1901) 1 Ir. Rep. 404.

99 Twist v. Tye, (1902) P. 92. To the same effect, see Boughton v. Knight, L. R. 3 P. & D. 77; Page v. Williamson, 87 L. T. N. S. 146.

1 Mitchell v. Gard, 3 Sw. & Tr. 277; Williams v. Henry, 3 Sw. & Tr. 471; Fulton v. Andrew, L. R. 7 H. L. 448; Wilson v. Bassil, (1903) P. 239.

« EelmineJätka »