believe justly and properly, that the child should be brought up in the faith of her deceased mother. Differences in religious belief between applicants for appointment as guardian and the infants for whose guardianships they prayed have been under consideration on numerous occasions and have received and are entitled to receive serious consideration in solving questions of guardianship. The infant should receive instruction in the faith of her parents because it must be assumed, no evidence to the contrary being submitted, that such would have been the wishes and desires of the parents. If, however, the temporal welfare of the child can be secured and her religious training in the faith of her mother also be directed, then I believe that the court should follow the course which would have such a result. The petitioner in this proceeding expressed his willingness to have this child brought up in the faith of her deceased mother, and the court is not without precedent showing that the appointment of a guardian may be conditioned upon the infant receiving instruction in a specified religions faith. (Matter of Lamb's Estate, supra; Matter of Mancini, 89 Misc. Rep. 83.) This being so, I reach the conclusion that the present custody of the infant should not be changed and the petitioner should be appointed the guardian of her person and estate, upon the conditions, however, that the child receive religious instruction and training in the faith of her deceased mother until she arrives at years of discretion, and that the petitioner permit the respondents to visit the child at such times as may be reasonable. In making this disposition, I do not criticize the action of the respondents in opposing this application. I believe that their motives were of the highest and were actuated by an unselfish interest in this orphan child which merits sincere admiration. In awarding guardianship to the petitioner, it is to be hoped that the controversy between the petitioner and the respondents, which I trust has now been concluded, and which was caused by the love they all have for the infant, may leave no ill will between them, but rather may result in a feeling of mutual esteem, to the end that the infant may have the benefit of being under the observation not only of her legal guardian, but also of her two aunts, all acting in accord. granted upon the conditions mentioned. Petition granted. The petition is In the Matter of the Application for the Revocation of Letters Testamentary Issued Under the Last Will and Testament of HENRY REINHARDT, Deceased. (Surrogate's Court, Bronx County, October, 1915.) WILLS-LETTERS TESTAMENTARY-WHEN GRANTED- -WHEN QUESTION OF RELATIONSHIP TRIED BY JURY EVIDENCE. On a petition praying that a decree admitting a will to probate and the letters testamentary issued accordingly be revoked upon the ground that the same were obtained by a false statement of a material fact in that the proponent failed to state that the petitioner was the widow of the decedent and falsely stated that the testator left him surviving no widow, the petitioner claimed as a matter of right to have the question of relationship to the decedent tried by a jury. Held, that the question whether the petitioner was the widow of the decedent is a preliminary question that may and should be determined before the merits of the proceeding itself are inquired into; that the fact that in some actions triable by jury the issue of marriage is involved does not fix the right to have this issue tried by a jury regardless of the action in which it arises; and that the issue presented in this case is not one of which the petitioner has a constitutional right of trial by jury. APPLICATION for trial by jury of a controverted question of fact. Bernard J. Tinney, for petitioner. Edward J. Martin, for respondent. SCHULZ, S.- The petitioner prays that a decree heretofore made admitting to probate an instrument propounded as the last will and testament of the decedent and the letters testamentary issued in accordance therewith be revoked upon the grounds that the same were obtained by a false statement of a material fact, in that the proponent failed to state that the peitioner was the widow of the decedent, that he failed to cause a citation to be issued to the petitioner as provided by law, and that he falsely stated that the testator left him surviving no widow. The executor interposed an answer in which he raises an issue as to the relationship of the petitioner to the decedent. It thus becomes necessary to ascertain whether the petitioner is the widow of the decedent; for if she is not such widow then under the pleadings, to-wit, the petition and the answer thereto, she cannot maintain the proceeding in question. (Code Civ. Pro., 2569.) Whether the petitioner is the widow of the decedent is a preliminary question and may and should in my judgment be determined before the merits of the proceeding itself are inquired into. (Matter of Hamilton, 76 Hun, 200; Matter of Wagner, 119 N. Y. 28; Matter of Cummins, 9 App. Div. 492; Matter of Thompson, 41 Misc. Rep. 223; Matter of Peaslee, 73 Hun, 113; Matter of Lord, 90 Misc. Rep. 222.) The petitioner claims that she is entitled, as a matter of right, to have the question of her relationship to the decedent tried by a jury. Section 2538 of the Code of Civil Procedure, in so far as material, provides: "In any proceeding in which any controverted question of fact arises, of which any party has constitutional right of trial by jury, *the surrogate * * must make an order directing the trial by jury of such controverted question of fact, if any party appearing in such proceeding seasonably demands the same." proceeding. (Code Civ. Pro., §§ controverted question, whether the decedent, is a question of fact. The matter before me is a 2569, 2518, 2548.) The petitioner is the wife of the (Story v. Williamsburgh Masonic Mutual Benefit Assn., 16 Wkly. Dig. 473; affd., 95 N. Y. 474.) The only question then remaining to be determined is whether the petitioner has a constitutional right of the trial of this controverted question of fact by a jury. The Constitution (1894 in effect 1895), article 1, section 2, so far as material, provides: "The trial by jury in all cases in which it has been heretofore used shall remain inviolate forever." The words "heretofore used" in this section refer to the date of the adoption of this Constitution (Wynehamer v. People, 13 N. Y. 378), and embrace those cases in which the trial by jury was created or specifically prescribed by statute and those where such right was recognized by the common law. Section 968 of the Code of Civil Procedure sets forth the actions in which issues are triable by a jury, and, in addition to the actions in this section specified, other actions and proceedings in which a jury trial exists as a matter of right are treated of in sections 1544, 1753, 1757, 1950, 1958, 2083 and 2247. The issue herein, however, is not referred to in any of the foregoing sections of the Code. Hence, though the cases and proceedings therein specified are triable before a jury by constitutional right, all of these sections having been in force prior to the adoption of the Constitution of 1894, the petitioner herein has no right to a trial by jury of the issue involved in this matter by reason thereof. I have been unable to find a case holding that the issue here presented has ever been submitted to a jury, except when it arose in a case which the parties were entitled to try by jury, such as an action for dower, nor has my attention been drawn to any such case by counsel. The authorities appear to me to be opposed to such a holding. Thus in Wood v. Platt (57 Misc. Rep. 140), on a motion for an order framing issues and directing a trial by jury, the court said: "The only issue raised by the pleadings in this action is whether the plaintiff was married to defendant on or about November 9, 1901 *.' There * * is no authority for the submission of this issue to a jury upon this motion, and the practice of submitting any issue other than that of adultery to a jury in an action of this character has been distinctly disapproved by the Appellate Division of this Department;" citing numerous cases. In an action for divorce the relationship of husband and wife must be established; hence if controverted, and the parties were entitled to try that issue by jury and insisted upon their right to do so, it should be so tried, but in that class of actions it has been uniformly held that the issue of adultery only is triable by jury as a matter of right because of a specific provision of law. (Code Civ. Pro., § 1757; Horn v. Horn, 73 Misc. Rep. 14.) The fact that in some actions triable by jury the issue of marriage is involved, does not fix the right to have this issue tried by a jury regardless of the action in which it arises. (Wise v. Wise, 159 App. Div. 575; Sands v. Kimbark, 27 N. Y. 147.) I am of the opinion that the issue is not one of which the petitioner has a constitutional right of trial by jury and so hold, thus agreeing with the conclusions reached upon a somewhat similar application in New York county. (Matter of Bitter, N. Y. L. J. June 2, 1915.) The request for a jury trial is denied. So ordered. |