Plant v. Harrison

1. Will—Probate—Testator’s Domicile—Framing Issue for Jury—Application—Ref us al.

Where the material issue in a suit to probate a will is as to the testator’s domicile, and the facts are not in dispute, but only the legal inference to be drawn therefrom as to his change of domicile, and no great amount of testimony is likely to be introduced, the refusal of an application for the framing of an issue for a jury, made under Code Civ. Proc. § 971, providing that, where a party is not of right entitled to a jury trial, the court may, in its discretion, direct that issues of fact be tried by jury, is justifiable.

2. Same—Transfer of Securities—Immaterial Issues—Jury Trial—Refusal of Application.

Where, in a suit to probate a will, the only material issue is as to the testator’s domicile, it is proper to refuse to frame for trial by jury an issue as to whether defendants have removed certain securities of the estate from New York to Connecticut, such issue being immaterial in the absence of any allegation of fraud, since wherever the estate is administered, there the assets must be collected.

Suit by Margaret J. Plant, individually and as trustee, etc., against Lynde Harrison, George H. Tilley, and others, individually and as trustees, etc., and Henry Bradley Plant, an infant. From an order denying plaintiff’s motion to frame issues to be tried by a jury, she appeals.

Affirmed.

INGRAHAM, J.

Upon the whole case we think the court was justified in refusing this application of the plaintiff, and that the order appealed from should be affirmed, with $10 costs and disbursements. All concur.