Opinion
January 20, 1953.
CAREY, J., sitting.
James M. Tunnell, Sr. (of Tunnell and Tunnell) for proponents.
Everett F. Warrington for contestant.
Motion to dismiss an issue devisavit vel non framed by the Register of Wills for trial by a jury under Section 3802 Revised Code 1935.
According to the record before the Court, the will of Fannie Harmon was probated in common form on January 24, 1951. Lammontte Harmon Warrington, a daughter, on November 21, 1951, filed a petition for review under Code Section 3801. The Register's docket indicates that on the same date citations were issued upon the executor and the sole beneficiary. On December 11, 1951, the Register ordered an issue framed for trial by a jury in this Court. No bond as required by Code Section 3801 was filed by the contestant until February 27, 1952. It was on that day approved by the Register. On the following day, the record was delivered to this Court.
Nothing in the record shows affirmatively that the Register ordered a review as required by the cited statute. Likewise, nothing in the record indicates that the Register was ever asked to dismiss the proceeding. At oral argument, however, counsel for proponents insisted that such a request had been made, notwithstanding the failure of the record to show it.
The present motion asks this Court to dismiss the issue on the ground that the bond was not filed within the period of time permitted by Code Section 3801. An additional reason given the Court is that, some time after the issue was framed, a final account was passed by the executor showing the estate to be insolvent, and that there are no assets of any nature which would pass to the beneficiary or to the heirs or next-of-kin.
Code Section 3801 reads in part as follows:
"3801. Sec. 3. Review, When Ordered; Bond for Costs; Proceedings Upon: — Any person interested who shall not voluntarily appear at the time of taking the proof of a will, or be served with citation or notice as provided in Section 1, shall at any time within one year after such proof have a right of review which shall on his petition be ordered by the Register, but unless the petitioner or petitioners shall, within ten days after such review shall have been ordered by the Register, give bond to the State, jointly and severally if more than one petitioner, with such sureties and in such penal sum not less than Five Hundred Dollars and not more than Five Thousand Dollars as the Register may determine, conditioned for the payment of any and all costs occasioned by such review which may be decreed against such petitioner or petitioners, such petition shall be considered as abandoned and shall be dismissed and proceedings may be had in all respects as though no such review had been ordered. Upon such review there shall be the same proceedings as upon a caveat; and the allowance of the will and granting of letters may be affirmed or the will rejected and the letters revoked."
The statute pertaining to framing of issues by the Register is Code Section 3802 which reads as follows:
"3802. Sec. 4. Issue to Jury; Power to Order; Form of: — The register shall have power to order any issue of fact whereof he may prescribe the form, touching an instrument purporting to be a will, to be tried by a jury in the Superior Court."
Superior Court for Sussex County, No. 52, Civil Action, 1952.
The only question now to be decided was raised by the Court on its own motion since it is one of jurisdiction. May the Superior Court, in this proceeding, decline to try the issue framed by the Register and declare the review abandoned or the cause moot?
The Register is a Judge, and the sentence of his Court is the judgment of a tribunal of exclusive and peculiar jurisdiction on the subject matter before him. 1 Woolley Delaware Practice 25. His Court has sole original jurisdiction over the probate of wills and the review thereof. No other Court may exercise these powers originally, save only in the case of disqualification of the Register, in which event the Orphans' Court may do so. See Article IV Delaware Constitution. While Section 32 of that Article empowers the Legislature to transfer any or all of the Register's functions to the Orphans' Court, it has not yet done so. See Volume 48 Laws of Delaware 232.
The granting of an issue devisavit vel non is a matter of discretion for the purpose of informing the Register's conscience, and he may disregard the jury's finding. 1 Woolley Delaware Practice 25. In this respect, his position is similar to that of the Court of Chancery. Scotton v. Wright, 14 Del. Ch. 124, 122 A. 541. The weight of authority is that, where the framing of issues is discretionary and where no statute or rule of Court provides otherwise, the referring Court may control to a great extent the conduct of the trial, and may withdraw the issue before trial. 30 C.J.S., Equity, § 502, pp. 899,900; Black v. Lamb, 12 N.J. Eq. 108. In Garden v. Garden's Executrix, 2 Houst. 574, the law Court admitted certain evidence, which probably would have been otherwise held inadmissible, because the Register had directed that it be placed before the Jury.
It is clear that reference of an issue to this Court does not have the effect of transferring the case itself to this Court. The function of the trial court is simply to submit the issues to the jury and to report its findings to the referring Court. 30 C.J.S., Equity, § 505, p. 901. If before trial the matter becomes moot, the referring Court should be asked to recall the record. Moreover, the function of the law Court in this proceeding being so confined, it may not pass upon the adequacy of the referring Court's record or the propriety of its rulings. Pleasants v. McKenney, 109 Md. 277, 71 A. 955. Other methods exist whereby its errors may be reviewed and corrected.
On the other hand, where counsel bring to the law Court's attention the existence of important questions which ought to be resolved before the jury is impaneled, there is no reason why this Court should not, in its discretion, temporarily stay the proceedings here to allow the necessary steps to be taken for determination of those questions. In the present instance, it is suggested on behalf of the contestant that the Register has never yet ordered a review and that his order of reference is premature; it is further suggested, in the alternative, that proponents have waived any irregularity in the filing of the bond. On behalf of the proponents, it is suggested that a review was ordered, notwithstanding the failure of the record to show it; that there actually has been no waiver as to the bond (even assuming the statutory requirement may be waived); and that the whole matter is in fact moot. Obviously, determination of these points may result in making a jury trial unnecessary. A stay will therefore be granted for a period of thirty days, and if within that time proceedings have been started to obtain a ruling upon these questions, the stay will be extended until they shall have been decided. This order will not, of course, operate as a bar to the recall of the present record, should that action be found desirable or necessary.