Opinion
Decided October 1, 1935.
After a jury trial of an issue of devisavit vel non, without objection to the order therefor, the executor is not estopped from later moving for a trial by the court where the verdict has been set aside. Whether such original order was intended to apply to a later trial is to be determined by the justice making it; and though such was his intention the order may be set aside upon a finding that because of accident, mistake or misfortune the continuance of the order would be unjust.
PROBATE APPEAL, from the allowance of a will. Pursuant to an order not excepted to, a jury tried the issues, but its verdict has been set aside.
The court (Sawyer, C.J.) has transferred without ruling the question whether the executor is estopped from now moving for a trial by court, because of his acquiescence in the order for a jury trial and of his participation in the trial had.
Arthur E. Sewall and Jeremy R. Waldron (Mr. Sewall orally), for the executor.
William H. Sleeper, John L. Mitchell and Ralph G. McCarthy (Mr. Sleeper orally), for the appellant.
The order for a jury trial is to be interpreted by the trial justice making it in respect to its application to the trial had or to any retrial as well. Lear v. Brodeur, 84 N.H. 549, 550. If it was to apply to a retrial, it may be set aside upon a finding of accident, mistake or misfortune causing the continuance of the order to be unjust, conformably with the statutory principle (P.L., c. 342) relating to new trials.
Case discharged.