judgment against Peter Adamson, Jr., Mau- presented. There is no evidence that it did | remanded, with instructions to affirm the not pay the full value of the property purchased from the Adamson Coal Company, or that they had any fraudulent intent in making the purchase, or that they had any reason to suspect that the directors of the Adamson Coal Company did not intend to pay the just debts of that corporation, and the payment was made in cash. The fact that the Union Coal Company knew that the Adamson Company was in a failing condition. and insolvent does not render the purchase by the Union Coal Company fraudulent; for to so hold would render any sale of property by an insolvent fraudulent, even where he got full value for the property sold. (49 Okl. 697) PARKER et al. v. HAMILTON. (No. 6275.) (Supreme Court of Oklahoma. July 13, 1915 Rehearing Denied Jan. 11, 1916.) TENT. [9] The fact that the Union Coal Company knew that the Adamson Company was insolvent does not carry with it notice that the directors of that company would misapply the 1. JURY purchase money; for no one is bound to assume that the party with whom he deals is a wrongdoer, or that he intends to commit a fraud United States v. Detroit, etc., Co., 200 U. S. 321, 332, 26 Sup. Ct. 282, 50 L. Ed. 499. That the vendee must participate in the fraudulent intent was decided by this court in Oklahoma Nat. Bank v. Cobb (No. 5781) 153 Pac. 134, decided November 16, 1915, not yet officially reported. In Vicksburg City Telegraph Co. v. Citizens' Telegraph Co., 79 Miss. 341, 30 South. 725, 89 Am. St. Rep. 656, it was held that, where there has been neither a consolidation nor a merger, but a sale by one corporation of its property to another, if made for a valuable consideration and in good faith, the property will pass to the purchasing corporation, free from the claims of creditors, and the same rule prevails as between individuals; and see Hawkins v. Central R. R. Co., 119 Ga. 159, 46 S. E. 82. And in 1 Thompson on Corporations, § 377, it is said: "The foregoing does not, it is assumed, apply to a bona fide sale, for a good consideration, by one company of all of its properties to another. In such case the consideration of the sale would pass to the directors of the selling company, and they would hold it as a trust fund for their creditors first, and their shareholders next. It would be a mere substitution of trust funds, and the purchasing company would not, on wellsettled principles, be bound to see to its proper application by the directors of the selling company." The question of the power of the Adamson Coal Company to sell its entire assets and property was not raised in the trial court, nor has it been presented to us, and it is therefore not considered; but see Anderson v. Shawnee Compress Co., 17 Okl. 231, 87 Pac. 315, 15 L. R. A. (N. S.) 846. The only question decided on this part of the case is that, where one corporation purchases all the property of another, and pays its full value in cash, there being no fraudulent intent, it is not liable to creditors of the selling corporation. We therefore recommend that the case be (Syllabus by the Court.) 10-RIGHT TO JURY TRIAL-Ex The trial by jury secured to the people of the state by section 19, art. 2, of the Constias it existed and was in use when the Constitutution is a trial according to the common law tion was adopted, except as specifically modified by the provisions of the Constitution itself. Dig. §§ 15, 16, 272; Dec. Dig. 10.] 2. JURY 19-RIGHT TO JURY TRIAL-WILL A proceeding contesting the probate of a will is not a suit wherein the parties are entitled to a trial by jury as a matter of right under section 19, art. 2, of the Constitution. [Ed. Note.-For other cases, see Jury, Cent. Dig. §§ 104-133; Dec. Dig. 19.] 3. COURTS 200-JURISDICTION COURT-PROBATE PROCEEDINGS. - SUPERIOR By reason of section 1966 and section 1974, Comp. Laws 1909 (Rev. Laws 1910, §§ 1798, matters of probate in a cause appealed from 1806), the superior court has jurisdiction of the county court to the district court and transferred upon motion of plaintiffs to the superior court. Dig. §§ 441, 442, 454, 469-471; Dec. Dig. 200.] 4. JURY 11-WILLS 318-RIGHT TO JUBY TRIAL-DISCRETION-ADVISORY VERDICT -PROBATE PROCEEDINGS. On an appeal to the district court from a judgment of the county court admitting a will to probate, where the cause is transferred by the district court to the superior court, the latter court may, in its discretion, make an order for a trial by jury of any or all the matebetween the parties. But in such case the verrial questions of fact arising upon the issues dict of the jury will be merely advisory to the court, and he may adopt or reject their conclusions, as he sees fit; for the whole matter must eventually be left to him to determine. [Ed. Note. For other cases, see Jury, Cent. Dig. 88 19-24; Dec. Dig. 11; Wills, Cent. Dig. 88 751-754; Dec. Dig. 318.] 5. COURTS 42-ESTABLISHMENT OF SUPERIOR COURT VALIDITY OF STATUTE. Article 7, c. 14, p. 181, Sess. Laws 1909, under which the superior court of Pottawatomie county was organized, is constitutional, and said court is legal. [Ed. Note. For other cases, see Courts, Cent. Dig. §§ 163-170, 181-183; Dec. Dig. 42.] For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 154 P.-5 7. TRIAL 370 SUBMISSION OF ISSUES ADVISORY VERDICT. In cases where the parties are not entitled to a jury trial as a matter of right, and the finding of the jury being advisory only, it is not error for the court to refuse to submit all the questions of fact to the jury, but he may submit such as are controverted or such as he may desire to be advised upon. Oklahoma Trust Co. v. Stein, 39 Okl. 756, 136 Pac. 746. [Ed. Note.-For other cases, see Trial, Cent. Dig. §§ 881, 885; Dec. Dig. 370.] 8. JUDGMENT 199-MOTION FOR JUDGMENT -ADVISORY VERDICT - CONFLICTING DENCE. EVI In a case, where the findings of the jury are advisory only, and the same were not adopted by the court, it is immaterial whether such verdict is general or special, or upon what instructions it was reached, or whether on controverted or uncontroverted evidence. [Ed. Note.-For other cases, see Judgment, Cent. Dig. 88 367-375; Dec. Dig. 199.] 9. APPEAL AND ERROR 1047-RULINGS ON EVIDENCE. In the trial of a case the question of admitting or rejecting testimony is one intrusted largely to the sound discretion of the trial court; and, where the matter submitted by the issues in the case is not one where the parties are entitled to a jury as a matter of right, the ultimate decision of the case is with court, not with the jury, great latitude is allowed in the exercise of discretion by the court in admitting or rejecting testimony, and the case will not be reversed in this court for error in this particular, unless such an abuse of discretion is shown as to deprive the objecting party of some substantial right. Tobin v. O'Brieter, 16 Okl. 500, 85 Pac. 1121. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 4132, 4133, 4146-4152; Dec. Dig. 1047.] WAIVER OF IRREGULARITIES. Irregularities in the transfer of a case from the district to the superior court may be waived by the parties, and, when waived by them, any judgment rendered by the superior court will be regular. [Ed. Note.-For other cases, see Courts, Cent. Dig. 88 1316-1323; Dec. Dig. 488.] 11. JUDGMENT 211-RENDITION-VALIDITY -ADVISORY VERDICT. In cases where the court may ignore the findings of the jury and render such judgment as he considers authorized and proper under the evidence in the case, it will be immaterial whether or not it renders judgment in response to a motion therefor by one of the parties, and such judgment will not be void because rendered subsequent to the filing of a motion for a new trial by the party in whose favor the judgment is rendered and before passing on such motion. Where the evidence reasonably tends to support the judgment rendered by the court, ignoring the findings of the jury, in a case where the parties are not entitled to a trial by jury as a matter of right, such judgment will be affirmed by this court. Error, Cent. Dig. § 39952; Dec. Dig. [Ed. Note.-For other cases, see Appeal and 1014.] Error from Superior Court, Pottawatomie County; George C. Abernathy, Judge. the will of Samuel Bailey, deceased, and for Application by B. F. Hamilton to probate letters testamentary. Probate of the will was opposed by Aramelia Parker and others. From a judgment admitting the will to probate and granting letters testamentary to proponent, the contestants appealed to the district court, from which court the case was transferred to the superior court, where judgment was rendered for proponent, and contestants bring error. Affirmed. H. H. Smith, of Shawnee, C. W. Crim, of Estherville, Iowa, J. T. Suggs, of Denison, Tex., B. L. Jones, of Sherman, Tex., and J. D. Lydick, of Shawnee (H. H. Smith, of Shawnee, on the brief), for plaintiffs in error. Samuel W. Hayes, of Oklahoma City, and W. S. Pendleton and F. H. Reily, both of Shawnee, for defendants in error. BROWN, J. Samuel Bailey died September 26, 1912, in Pottawatomie county, Okl., leaving a will in which he devised to his nephew, Sherman Spencer, his entire estate, consisting of several thousand dollars. The will named Dr. B. F. Hamilton as sole executor without bond. September 27, 1912, B. F. Hamilton, filed with the clerk of the county court his application and petition to probate the will and for letters testamentary. October 21, 1912, Mrs. May Spencer filed her application in the county for probation of the will and to be appointed administratrix with the will annexed, alleging that Sherman Spencer, the legatee named in said will, died September 29, 1912, and that she was his surviving wife and heir, and, as such, entitled to the estate of Samuel Bailey, deceased, and that B. F. Hamilton was not a proper person to act as executor of Bailey's will. October 21, 1912, an answer was filed in the county court by B. F. Hamilton and Sherman Spencer, denying generally the allegations contained in May Spencer's application, and especially denying that Sherman Spencer was [Ed. Note.-For other cases, see Judgment, Cent. Dig. § 386; Dec. Dig. 211.] 12. WITNESSES 359-IMPEACHMENT-CON- dead and the incompetency of B. F. Hamilton VICTION OF WITNESS. Where the trial court admits in evidence the judgment of a foreign state convicting a witness who testified upon the trial of a felony, it to act as executor of Bailey's will, and denying that May Spencer had any right to be appointed administratrix of the will. After due notice of the application to pro- attorney, filed written objections to a trial bate had been given, plaintiffs in error Aramelia Parker and Sabrina B. Strong and Parry Kilburn appeared in said county court, the two first mentioned claiming to be sisters of Samuel Bailey, the latter a nephew by a deceased sister, and all claiming to be heirs of said Bailey, and protested against the probation of said will on the ground that Samuel Bailey at the time he made the same was mentally incompetent to make the will, and that the will was not executed according to law, and prayed that the court refuse probation of the will and appoint an administrator of Bailey's estate. October 21, 1912, B. F. Hamilton and Sherman Spencer filed an answer to the objection and protest of Aramelia Parker and others denying the allegations therein contained. November 11, 1912, Aramelia Parker, Sabrina B. Strong, Henry F. Bailey, James Chrystler, Hannah Brewer Kipton, Franklin Chrystler, Charles Chrystler, and John M. Chrystler filed in the county court of Pottawatomie county their joint protest and objections to the probate of the will of Samuel Bailey, alleging they were next of kin to said Bailey, and further alleged, in substance, that the purported will of Samuel Bailey was not executed by him according to law, that he was mentally incompetent to make a valid will, and for various reasons therein alleged the purported will was void, and the objectors prayed for the appointment of an administrator of said estate, and that probation of the will be denied. A hearing was had in the county court December 2, 1912, and judgment rendered admitting the will to probate, and granting letters testamentary to B. F. Hamilton, executor. From this judgment the objectors, Aramelia Parker, Sabrina B. Strong, and others, appealed to the district court of Pottawatomie county. January 30, 1913, on motion of the objectors, Aramelia Parker and others, filed in the district court of Pottawatomie county, the cause was transferred to the superior court of said county. February 1, 1913, Aramelia Parker and others filed motion in the superior court of Pottawatomie county asking that said cause be remanded to the district court of said county, alleging that, under the Constitution and statutes of Oklahoma, said superior court was without jurisdiction to hear and determine said cause. The motion was overruled, and plaintiffs excepted. The case was thereafter set down for trial July 14, 1913, and on July 9th plaintiffs, contestants, filed their motion and application for trial by jury. On the same day the application for trial by jury was sustained on the agreement of plaintiffs to withdraw the application for a rehearing of their application for a writ of prohibition in the Supreme Court of Oklahoma, and upon condition that the plaintiffs deposit with the clerk of the court $200 in cash to defray the expenses of said jury. July 4, 1913, May Spencer, by her by jury for the reason that the jury had been summoned upon the application of plaintiffs, and the expenses thereof paid with money deposited by plaintiffs, and the summoning of the jury was irregular and not authorized by law. July 14, 1913, the case was called for trial, and May Spencer presented her application for a continuance of the case, and defendants Hamilton and Spencer, by their attorneys, moved to quash the panel of the jury summoned for the trial of the case, on the ground the same was irregularly drawn, that there was no money in the court fund to pay the expense of the same, and that the contestants had deposited $200 with which to pay their expenses, and that fact would have a tendency to bias the jury in favor of the plaintiffs. The court overruled the motion for continuance and the objection to the jury, and the cause proceeded to trial to the jury. After the conclusion of the evidence, which covers over 300 pages of the case-made, Hamilton and Spencer moved the court to discharge the jury, and for the court to pass upon the questions of law and fact. Contestants, Aramelia Parker and others, then moved the court to instruct the jury to return a verdict in effect denying the probate of the will. After refusing numerous instructions requested by the plaintiffs, the court instructed the jury, which retired, and thereafter returned into court their findings and answers to special interrogatories as follows: "First. Did Samuel Bailey sign the alleged Answer: Yes. will? same executed and witnessed in compliance with "Second. If he signed the alleged will, was the the law as same has heretofore been stated in these instructions? Answer: Yes. "Third. If Samuel Bailey signed the will and uel Bailey in the making of said will controlled same was executed as required by law, was Samby an insane delusion as same has been defined for you in these instructions? Answer: Yes. and same was executed as required by law, and "Fourth. If Samuel Bailey signed the will, if he was not in the making of said will controlled by an insane delusion as same has heretofore been defined in these instructions, did he have the capacity to retain in memory the extent and condition of his property to comprehend to whom he was giving it and to appreciate the deserts and relation to him of others to whom he gave nothing? Answer: No." Thereafter, July 19, 1913, the defendants moved the court to set aside the special verdict of the jury and enter judgment for defendants, and on July 22d defendants filed motion for new trial. July 26th plaintiffs, the contestants, filed a motion for judgment on the findings of the jury. The court thereupon pronounced its conclusions of fact and of law, and rendered judgment "that the will be admitted to probate notwithstanding the verdict, and that the costs be taxed to the contestants." Contestants excepted to the conclusions of law and fact made by the court and to the judgment rendered, and thereafter in due time filed motion for a new trial, which was overruled, and they prosecute error. The petition in error contains fifty assign-1 500 [34 S. W. 245, 36 S. W. 43]; Byers v. Comments of error, but in their brief plaintiffs monwealth, 42 Pa. 89; Plimpton v. Somerset, in error present the case to this court upon subject by the Constitution is a trial accord33 Vt. 283. The trial by jury secured to the eight general propositions, viz.: ing to the course of common law, and the same, (1) "The court erred in overruling motion for in substance, as that which was in use when the new trial upon the grounds assigned that de- Constitution was formed.' East Kingston v. fendants or contestants below had the right of Towle, 48 N. H. 64 [97 Am. Dec. 575, 2 Am. trial by jury, and consequently on disputed evi-Rep. 174]. See, also, Copp v. Henniker, 55 N. dence the court could not sustain a motion for H. 179 [20 Am. Rep. 194]; Hagany v. Cohnen judgment notwithstanding the verdict." et al., 29 Ohio St. 82. (2) "The superior court was not in existence at the time of the rendition of judgment, October 13, 1913." (3) "If the court was a legally existing court, it had no jurisdiction to make findings or render judgment at a term subsequent to the term the case was tried, without the court being adjourned to said term." (4) "The court erred in not submitting to the jury the issue of undue influence, and in not requiring the jury to find generally." (5) "If the verdict of the jury is special, as contended in defendant in error's brief, a motion for judgment will not lie; and this because a motion for judgment applies only when the evidence is undisputed, and when judgment may be rendered on the pleadings, notwithstanding the verdict, and never applies when a special verdict is relied upon." (6) "The evidence of Hamilton and Spencer was incompetent, and motion to exclude same should have been sustained." (7) "The court's view of the law as expressed in its opinion and by its instructions to the jury was erroneous." (8) "The superior court had no jurisdiction of this case on the record." [1, 2] It is claimed by plaintiffs in error that, under section 19, art. 2, of the Constitution of Oklahoma, the parties litigant are entitled to a trial by jury as a matter of right in all cases in courts of record in this state when issues of fact are joined by the pleadings. We cannot agree with this contention. The section of the Constitution referred to has been construed to confer the right of trial by jury to be absolute in cases only where the right existed at common law as construed at the time of the erection of the state, except as modified by the Constitu tion. In the case of Baker v. Newton, 27 Okl. 436, 112 Pac. 1034, 40 L. R. A. (N. S.) 940, it was held, quoting from paragraph 4 of the syllabus: "Trial by jury secured to the people of the state by section 19, art. 2, of the Constitution, is a trial according to the course of the common law as it existed, and the same, in substance, as that which was in use when the Constitution was adopted, except as specifically modified by the provisions of the Constitution." In the case of Baker v. Newton, supra, Justice Hayes speaking for the court, after copying section 19, art. 2, of the Constitution, and construing the same, says: "The question therefore arises: What constitutes a trial by jury as guaranteed by the Constitution? This question has been under investigation by many courts of the nation, both state and federal, and there is unanimity in the opinions that the right of trial by jury secured by the Constitutions of the various states is simply the right to a trial by jury constituted substantially and with the same elements and incidents as existed when the Constitution was adopted. Carroll v. Byers et al. (Ariz.) 26 "Judge Cooley, discussing these provisions, said: 'All the state Constitutions preserve the right of trial by jury, for civil as well as for criminal cases, with such exceptions as are specified, and which for the most part consist in such cases as are of small consequence, and are triable in inferior courts. The constitutional provisions do not extend the right in the cases in which it was a matter of right before." " And again, at page 447 of 27 Okl., on page 1039 of 112 Pac. [40 L. R. A. (N. S.) 940], it is further said: "The constitutional provisions preserving trial by jury in this state specifically eliminates some of the features thereof as it existed before the admission of the state. Section 19, art. 2, after providing that the right of trial by jury shall that in county courts and courts not of record be and remain inviolate, specifically provides a jury shall consist of six men, and in all civil cases, and in criminal cases less than felonies, three-fourths of the whole number of jurors shall have power to render a verdict. By these provisions unanimity in the verdict is no longer required in any civil case, and the number constituting the jury, as to county courts, is reduced from 12 to 6; but, except as to these two important changes in the features of the jury trial as it existed at common law, the preceding clause of the section provides that the trial by jury shall be and remain inviolate. It was evidently intended by such declaration of right that those essential features of the jury trial as existed before the admission of the state, not specifically modified by the Constitution, should be preserved." In the case of State ex rel. West, Attorney General, v. Cobb, 24 Okl. 662, 104 Pac. 361, 24 L. R. A. (N. S.) 639, in an opinion by Justice Dunn, it is said, quoting from paragraph 2 of the syllabus: "The right of trial by jury, declared inviolate by section 19, art. 2, p. 83, Snyder's Const. Oklahoma, except as modified by the Constitution itself, means the right as it existed in the territory at the time of the adoption of the Con stitution." Apache State Bank v. Daniel, 32 Okl. 121, 121 Pac. 237, 40 L. R. A. (N. S.) 901, Ann. Cas. 1914A, 520, was a case in which action was commenced in the county court to comof the estate for which administration was pel the administratrix to inventory as part therein pending certain bank stock which it was alleged belonged to the estate. The action was resisted by the administratrix, who claimed that she was the owner of said stock in person. The issue was thus formed by the pleadings, and a trial had in county court, which resulted in an order of that court requiring the administratrix to inventory said property. From this order the administratrix appealed to the district court. A trial was had in the district court before mitted and the trial resulted in a verdict To the same effect is the case of Richardand judgment for the administratrix, and son-Roberts-Bryne D. G. Co. v. Hockaday et appeal prosecuted to this court. One of the al., 12 Okl. 546, 73 Pac. 957, in which the grounds relied on for reversal was the sub-case of Barnes v. Lynch, supra, is quoted mission of the case to a jury. It was held with approval. that the submission of the case to a jury for a general verdict was erroneous. But it appearing that the court, having carefully reviewed the evidence, reached a conclusion independent of the jury, the case was not reversed on that ground, although the conclusion reached by the court was the same as found by the jury. The case of Cartwright v. Holcomb, 21 Okl. 548, 97 Pac. 385, 17 Ann. Cas. 277, appears directly in point. The case was one involving the contest of a will the probate of which was resisted in the county court. The court sustained the validity of the will and admitted it to probate. Contestants appealed therefrom to the district court, where a demand for a trial by a jury was refused, and the case was tried by the court without a jury. Judgment was rendered admitting the will to probate. The contestants appealed from the judgment of the district court, and a reversal was sought on the ground plaintiff in error had been denied a trial by jury in the district court. The case involved a question of fact upon which issue had been joined by the pleadings. This court, through the present Chief Justice, citing a number of authorities supporting the opinion, held that in such case a trial by jury as a matter of right did not exist at common law in the territory of In the case of Mosier and First National Bank of Walter v. Walter, 17 Okl. 305, 87 Pac. 877, the territorial court held as follows, quoting from paragraph 3 of the syllabus: "In an equitable proceeding for the cancellation of a deed, the jury sits merely in an advisory capacity to the court, and a party cannot complain of a refusal of the court to submit spe cial interrogatories, as their submission or rejection by a court of equity lies solely within its sound discretion, and it may adopt or reject such as it deems proper, and no error can be predicated thereon, unless such discretion has been abused." Section 4993, Rev. Laws 1910, reads as follows: "Issues of law must be tried by the court, unless referred. Issues of fact arising in actions for the recovery of money, or of specific real or personal property, shall be tried by a jury, unless a jury trial is waived, or a reference be ordered, as hereinafter provided." Our statute was taken bodily from the statutes of Kansas, viz., Gen. Stat. p. 680, § 266. In the case of H. H. McCardell et al. v. H. W. McNay, 17 Kan.. 433, plaintiffs sought to set aside a deed to certain property and have the same subjected to his judgment. In the trial of the case the defendant demanded a jury, which was refused, and on appeal the Supreme Court of Kansas, passing upon the Oklahoma. right of the litigants to a trial by jury unSuch was the condition of the law in Ok-der the statute above referred to, sustained lahoma at the time of the erection of the the action of the trial court in the followstate and the adoption of the Constitution. ing language: As said by Justice Kane in the Cartwright Case, supra, it was within the discretion of the trial court to order a jury to pass upon questions of fact arising in the case. It being discretionary with the court whether it would submit the issues of fact to the jury, we think it was likewise within its discretion whether it would accept and adopt the findings of the jury upon the issues submitted to them. In such cases it is held the findings of the jury are advisory only. The case of Barnes et al. v. Lynch et al., 9 Okl. 156, 59 Pac. 995, was a suit to set aside deeds to real estate and decree title therein to be in plaintiff and for an injunction restraining defendant from disposing of the land in controversy. The suit being one in which the parties were not entitled to a trial by jury as a matter of right, it was held, quoting from the syllabus: "In cases of equitable cognizance, while the judge may call in a jury or consent to one, for the purpose of advising him upon the questions of fact, he may adopt or reject their conclusions, as he sees fit, and the whole matter must eventually be left to him to determine, and instructions to the jury furnish no ground of error upon appeal. It was not only the right, but the duty, of the court to have determined all questions of fact as well as of law." "The only question in the case in this court is: Did the court below err in refusing the defendants, plaintiffs here, a trial by jury? This question must be answered in the negative. This is not one of the actions in which a party is entitled to demand a jury as a matter of right. In civil actions a jury can be claimed as a matter of right only, for the trial of ‘issues of fact arising in actions for the recovery of money, or of specific real or personal property.' Gen. Stat. 680, § 266. Now, this is not an action for the recovery of money. Neither is it an action for the recovery of real property. Nor is it an action for the recovery of personal property." In the case of Houston v. Commissioners of Cloud County, 19 Kan. 396, the action was by Houston against the commissioners and treasurer of Cloud county to restrain the assignment and transfer of certain tax sale certificates, and to set aside the treasurer's safe for taxes upon which such certificates were based. At the trial the plaintiff, Houston, demanded a jury, which was refused, and upon appeal the action of the trial court was sustained. In this case the case of McCardell v. McNay, supra, was approved. We have cited the several authorities above referred to in view of the earnest contention of counsel for plaintiffs in error that in the trial court plaintiffs in error |