HUDSPETH, Justice.
The relators invoke the jurisdiction of this court to compel, by mandamus, the Honorable Harry L. Patton, judge of the Ninth judicial district, to decide a cause in equity, which has been tried three times before a jury with the disagreement of the-jury in each of said trials, and which cause-the district court was, at the time of the filing of the application, holding without, decision to determine whether he would decide to decide the issue involved.
The relators are the executrix of the last-, will and testament of Filiberto F. Gallegos,, deceased, and the legatees and devisees, named in his will.
The petition for the probate of the will was filed in the probate, court of Quay county. Arturo Sandoval, claimant below, intervener in this court, filed his written objection to the probate of the will, claiming that he was the illegitimate son of the deceased and had been omitted from the will: The probate court denied the petition ofr Sandoval and admitted the will to probate.. From that order claimant appealed to the-district court, and also, within 90 days, caused the administration of the Gallegos, estate to be removed to the district court under the provisions of Comp.St.1929, §§: 34-422, 34-423. Later, the intervener elected to abandon his appeal, and proceed under-the removal statute, which provides for a. trial de novo in the district court upon request in such cases. In re Montano’s Estate, 38 N.M. 355, 33 P.(2d) 906.
It is admitted that the only issues arising-upon the claim of Arturo Sandoval are: (a) Is Arturo Sandoval the illegitimate son of' Filiberto F. Gallegos, deceased, a pure question of fact; and (b) Did Filiberto F.'Gallegos in his lifetime generally and notoriously recognize Arturo Sandoval as his illegitimate son, a mixed question of fact • and law.
At the second and third trials the relator -objected to the court calling a jury. At the third trial, after intervener’s counsel con.sented, stated that “it didn’t make any difference,” the court ruled that it was an •equitable trial and announced that he was ■calling the jury in an advisory capacity. Relators objected and excepted to the calling ■of the jury. After the jury at-the third trial reported that they were unable to reach a verdict, the court said: “However you would have decided this case, that would have been my verdict.” After the discharge ■of the jury the relator moved the court to proceed to decide the case and enter judgment upon its decision. The court ruled that he would take that motion under advisement.
Relators in their petition for the writ of ■mandamus state: “That it was then and •there, and now is, the plain, clear ’duty of •the court, and the judge thereof, the respondent above named, having tried said ■cause in equity, "and having called a jury •only in an advisory capacity, to decide said ■cause, or to announce that having taken ■the decision of said cause under advisement, it would in due time announce its decision thereon; and it was and is further ■the duty of the court upon deciding said ■cause, to permit counsel for contesting liti.gants to request findings of fact and conclusions of law in said cause before the ■entry of judgment; but the court, notwithstanding said clear, plain duty, is holding said cause without a decision thereon, and without announcing that it will ever at any time decide said case; and is, according to its announcement, deliberating upon whether it will proceed to a decision of the case so tried before it, or call for another trial of the issues of fact so made up as aforesaid.”
The response to the rule to show cause reads, in part, as follows,’to wit:
“That your Respondent has faith, and always has had faith in the wisdom of the verdict of a jury upon issues of fact; that your Respondent desired the advice of a verdict of a jury upon said issues of fact.
“Your Respondent further states that while, after the discharge of the Jury, Respondents in said case moved the court for the rendition of judgment for Respondents, Claimant has never so moved.”
The material facts are not in dispute. The costs of the three trials to the county of Quay amount to $2,249.24. The case was .first tried in the district court in December, 1933. The estate is large and consists of encumbered live stock and ranch lands. Re-lators complain that they are being kept out of their inheritance and may lose a large part because the secured creditors are threatening foreclosure proceedings; the executrix being unable to refund said indebtedness because of this litigation. Re-lators also represent that it has cost the estate about $1,000 for each trial, that they have had to bring witnesses from California and Texas, and that many of the witnesses are oid and some have died during the pendency of the cause.
A question strenuously argued here, which gave the trial court much concern, and, notwithstanding his ruling, evidently colored his thoughts throughout his consideration of the case, is as to the right of intervener to insist on a trial by jury. In-tervener maintains that he is entitled to a jury trial under Comp.St.1929 § 154-209, which reads as follows: “Probate — Procedure when will found invalid. If the probate judge finds the due execution and validity of the will to be proved, he shall render a judgment approving it as the last will and testament of the decedent, which shall be entered of record in the case. If such judge shall be of the opinion that the will is not valid, he shall endorse such opinion on the will and transmit the same, with all the testimony taken before him, and a transcript of the proceedings, to the clerk of the district court for his county. The matter shall then stand for hearing de novo in the district court the same as on appeal, but either party, on demand therefor, shall have the right to a trial by jury on such appeal; and the judgment of the district court declaring the will valid or void, shall, when the same becomes final, be certified by the clerk of the district court, to the clerk of the probate court, and shall be entered of record in the latter court as a part of the proceedings in the case. (L. ’89, Ch. 90, § 11; C.L. ’97, § 1983; Code T5, § 5879.” <
This section of the statute was considered in the case of In re Riedlinger’s Will, 37 N.M. 18, 16 P.(2d) 549, a case appealed to the district court under the provisions of Comp.. St.1929, § 34-420, and involving the due execution of a will. No such question is involved here. The order of the district court dismissing intervener’s appeal reads, in part, as follows, to wit:
“That said Arturo Sandoval admits the due execution of said will, and that his claim against said estate is based upon the provisions of Sec. 154-112 of the 1929 Codification, as a pretermitted heir.”
“It is therefore ordered that the appeal of said Arturo Sandoval from the order of the Court admitting .said will to probate be and the same is hereby dismissed; and that the administration of said estate proceed in this court upon said removal from the Probate Court.”
This case falls within the rule laid' down in Sheley v. Shafer, 35 N.M. 358, 298 P. 942, where we held that when the administration of an estate is removed from the probate court to the district court under the provisions of Comp.St.1929, § 34-422, it. stands on the docket of the district court as.
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HUDSPETH, Justice.
The relators invoke the jurisdiction of this court to compel, by mandamus, the Honorable Harry L. Patton, judge of the Ninth judicial district, to decide a cause in equity, which has been tried three times before a jury with the disagreement of the-jury in each of said trials, and which cause-the district court was, at the time of the filing of the application, holding without, decision to determine whether he would decide to decide the issue involved.
The relators are the executrix of the last-, will and testament of Filiberto F. Gallegos,, deceased, and the legatees and devisees, named in his will.
The petition for the probate of the will was filed in the probate, court of Quay county. Arturo Sandoval, claimant below, intervener in this court, filed his written objection to the probate of the will, claiming that he was the illegitimate son of the deceased and had been omitted from the will: The probate court denied the petition ofr Sandoval and admitted the will to probate.. From that order claimant appealed to the-district court, and also, within 90 days, caused the administration of the Gallegos, estate to be removed to the district court under the provisions of Comp.St.1929, §§: 34-422, 34-423. Later, the intervener elected to abandon his appeal, and proceed under-the removal statute, which provides for a. trial de novo in the district court upon request in such cases. In re Montano’s Estate, 38 N.M. 355, 33 P.(2d) 906.
It is admitted that the only issues arising-upon the claim of Arturo Sandoval are: (a) Is Arturo Sandoval the illegitimate son of' Filiberto F. Gallegos, deceased, a pure question of fact; and (b) Did Filiberto F.'Gallegos in his lifetime generally and notoriously recognize Arturo Sandoval as his illegitimate son, a mixed question of fact • and law.
At the second and third trials the relator -objected to the court calling a jury. At the third trial, after intervener’s counsel con.sented, stated that “it didn’t make any difference,” the court ruled that it was an •equitable trial and announced that he was ■calling the jury in an advisory capacity. Relators objected and excepted to the calling ■of the jury. After the jury at-the third trial reported that they were unable to reach a verdict, the court said: “However you would have decided this case, that would have been my verdict.” After the discharge ■of the jury the relator moved the court to proceed to decide the case and enter judgment upon its decision. The court ruled that he would take that motion under advisement.
Relators in their petition for the writ of ■mandamus state: “That it was then and •there, and now is, the plain, clear ’duty of •the court, and the judge thereof, the respondent above named, having tried said ■cause in equity, "and having called a jury •only in an advisory capacity, to decide said ■cause, or to announce that having taken ■the decision of said cause under advisement, it would in due time announce its decision thereon; and it was and is further ■the duty of the court upon deciding said ■cause, to permit counsel for contesting liti.gants to request findings of fact and conclusions of law in said cause before the ■entry of judgment; but the court, notwithstanding said clear, plain duty, is holding said cause without a decision thereon, and without announcing that it will ever at any time decide said case; and is, according to its announcement, deliberating upon whether it will proceed to a decision of the case so tried before it, or call for another trial of the issues of fact so made up as aforesaid.”
The response to the rule to show cause reads, in part, as follows,’to wit:
“That your Respondent has faith, and always has had faith in the wisdom of the verdict of a jury upon issues of fact; that your Respondent desired the advice of a verdict of a jury upon said issues of fact.
“Your Respondent further states that while, after the discharge of the Jury, Respondents in said case moved the court for the rendition of judgment for Respondents, Claimant has never so moved.”
The material facts are not in dispute. The costs of the three trials to the county of Quay amount to $2,249.24. The case was .first tried in the district court in December, 1933. The estate is large and consists of encumbered live stock and ranch lands. Re-lators complain that they are being kept out of their inheritance and may lose a large part because the secured creditors are threatening foreclosure proceedings; the executrix being unable to refund said indebtedness because of this litigation. Re-lators also represent that it has cost the estate about $1,000 for each trial, that they have had to bring witnesses from California and Texas, and that many of the witnesses are oid and some have died during the pendency of the cause.
A question strenuously argued here, which gave the trial court much concern, and, notwithstanding his ruling, evidently colored his thoughts throughout his consideration of the case, is as to the right of intervener to insist on a trial by jury. In-tervener maintains that he is entitled to a jury trial under Comp.St.1929 § 154-209, which reads as follows: “Probate — Procedure when will found invalid. If the probate judge finds the due execution and validity of the will to be proved, he shall render a judgment approving it as the last will and testament of the decedent, which shall be entered of record in the case. If such judge shall be of the opinion that the will is not valid, he shall endorse such opinion on the will and transmit the same, with all the testimony taken before him, and a transcript of the proceedings, to the clerk of the district court for his county. The matter shall then stand for hearing de novo in the district court the same as on appeal, but either party, on demand therefor, shall have the right to a trial by jury on such appeal; and the judgment of the district court declaring the will valid or void, shall, when the same becomes final, be certified by the clerk of the district court, to the clerk of the probate court, and shall be entered of record in the latter court as a part of the proceedings in the case. (L. ’89, Ch. 90, § 11; C.L. ’97, § 1983; Code T5, § 5879.” <
This section of the statute was considered in the case of In re Riedlinger’s Will, 37 N.M. 18, 16 P.(2d) 549, a case appealed to the district court under the provisions of Comp.. St.1929, § 34-420, and involving the due execution of a will. No such question is involved here. The order of the district court dismissing intervener’s appeal reads, in part, as follows, to wit:
“That said Arturo Sandoval admits the due execution of said will, and that his claim against said estate is based upon the provisions of Sec. 154-112 of the 1929 Codification, as a pretermitted heir.”
“It is therefore ordered that the appeal of said Arturo Sandoval from the order of the Court admitting .said will to probate be and the same is hereby dismissed; and that the administration of said estate proceed in this court upon said removal from the Probate Court.”
This case falls within the rule laid' down in Sheley v. Shafer, 35 N.M. 358, 298 P. 942, where we held that when the administration of an estate is removed from the probate court to the district court under the provisions of Comp.St.1929, § 34-422, it. stands on the docket of the district court as. a proceeding in equity, and that a claimant, is not entitled to a jury trial as a matter of right. We see no reason for changing the rule.
Another disputed question is as to the right of intervener to introduce additional evidence in case the trial court decides to adjudicate all issues without calling another jury. This is a matter within the discretion of the chancellor. The Supreme Court of West Virginia, in Bartholow v. Hoge et al., 71 W.Va. 427, 76 S.E. 813, said: “Defendants say that it was error for the court, after taking the cause for decision, to direct that further proof be taken. This action would seem to be within the inherent power of a court of chancery. We know of no good reason why a chancellor, in-the furtherance of justice between the parties, may not call for additional evidence in order that extremely doubtful points of fact may be elucidated and more intelligently decided. ‘The matter rests largely in the discretion of the chancellor, who may reopen a case where some additional fact or inquiry is indispensable to enable him to make a satisfactory decree.’ Fletcher on Equity Pleading and Practice, 691. Lord Bacon, in formulating his Ordinances in Chancery, provided for the examination of witnesses after publication of the evidence, to be taken by special order ad informandum conscientiem judiéis. The practice in proper cases has long been sanctioned. Mr. Justice Story stated the rule thus: ‘New evidence to inform the conscience of the judge should not be taken but upon or after the hearing, when the judge himself entertains a doubt, or when some additional fact or inquiry is indispensable to enable him to make a satisfactory decree.’ Wood v. Mann, Fed.Cas. No. 17,953, 2 Sumn. 316. Plainly, from the terms of the order in the case before us, it was in recognition of this rule that the order for the further taking of evidence was made. As we have seen, the matter was largely in the discretion of the court, and its discretion in the premises appears to have been properly exercised.” •
One of the important questions argued is the matter of procedure in chancery cases where the right to a jury trial is not expressly given. In Idaho & Oregon Land Imp. Co. v. Bradbury, 132 U.S. 509, 10 S.Ct. 177, 179, 33 L.Ed. 433, the United States Supreme Court said: “The case being one of equitable jurisdiction only, the court was not bound to submit any issue of fact to the jury, and, having done so, was at liberty to disregard the verdict and findings of the jury, either by setting them, or any of them, aside, or by letting them stand, and allowing them more or less weight, in its final hearing and decree, according to its own view of the evidence in the cause. By the settled course of decision in this court, it is not necessary that a court of equity should formally set aside the verdict or finding of a jury before proceeding to enter a decree which does not conform to it.”
An interesting discussion of this question appears in the decision of Brown v. Buck, Kalamazoo Circuit Judge, 75 Mich, 274, 42 N.W. 827, 830, 5 L.R.A. 226, 13 Am.St.Rep. 438, as follows: “The functions of judges in equity cases in dealing with them is as well settled a part of the judicial power, and as necessary to its administration, as the functions of jurors in common-law cases. Our constitutions are framed to protect all rights. When they vest judicial power they do so in accordance with all of its essentials, and when they vest it in any court, they vest it as efficient for the protection of rights, and not subject to be distorted or made inadequate. The right to have equity controversies dealt with by equitable methods is as sacred as the right of trial by jury. Whatever may be the machinery for gathering testimony or enforcing decrees, the facts and the law must be decided together, and when a chancellor desires to have the aid of a jury to find out how facts appear to such unprofessional men, it can only be done by submitting single issues, of pure fact, and they cannot foreclose him in his conclusions unless they •convince his judgment.”
In Stevens v. Duckett, 107 Va. 17, 57 S.E. 601, 603, it is stated:
“The first and most important question to be considered on this appeal involves the court’s action .in directing this issue to be tried by a jury.,
“It has long been settled by the decisions of this court that an issue out of chancery will not be directed when the claim is altogether unsupported by evidence. The rule has been that the defendant cannot be deprived, by an order for an issue, of his right to a decision- by the court on the case as made by the pleadings and the proof, unless the conflict of the evidence is so great and its weight so nearly evenly balanced that the court is unable to determine on which side the preponderance is. Pryor v. Adams, 1 Call [5 Va.] 382, 1 Am.Dec. 533; Wise v. Lamb, 9 Grat.[50 Va.] 294; Smith’s Adm’r v. Betty, 11 Grat.[52 Va.] 752; Beverley v. Walden, 20 Grat.[61 Va.] 147; Mahnke v. Neale, 23 W.Va. 57.
“It is also settled by numerous decisions of this and other courts that the ordering of issues depends on the application of sound legal discretion to the circumstances of the case. It is not a power to be exercised at pleasure, and depending on arbitrary discretion. Ordering an issue must always depend upon sound discretion, to be cautiously and diligently exercised, according to the circumstances of each particular case. Beverley v. Walden, supra; Mahnke v. Neale, supra.”
In 21 C.J. 590, Equity, § 724, the following appears:
“ * * * ^ chancery case which does not involve any important issues of fact, but depends on the application of legal principles to admitted facts, should not be submitted to a jury for an advisory verdict. An issue should not be directed to try a question of law, or a mixed question of law and fact. * * * ”
See, also, Kohn v. McNulta, 147 U.S. 238, 13 S.Ct. 298, 37 L.Ed. 150; Flippin v. Kimball, 87 F. 258 (C.C.A.); Dillingham v. Hawk, 60 F. 494, 23 L.R.A. 517 (C.C.A.); 21 C.J. 594; 64 C.J. 1198.
It is the rule in equity cases, supported by the great weight of authority, that the responsibility is that of the chancellor, and that the verdict of a jury is merely advisory and not binding upon the court.
The decree should be entered according to the court’s own view of the evidence. The judicial power conferred upon the courts by our Constitution included chancery jurisprudence, wherein it is the chancellor’s need, not his nor the litigant’s pleasure which justifies the calling of a jury. Being solely for the benefit of the chancellor, if he can to his own satisfaction pass upon the evidence without the assistance of a jury trial, it is his duty to do so.
The learned counsel of relator have filed an interesting brief on the right of this court to direct the district court to try or decide a case, and cite Territory v. Ortiz, 1 N.M. 5; Branford v. Erant, 1 N.M. 579; State ex rel. Meyers Co. v. Raynolds, Judge, 22 N.M. 473, 164 P. 830; Barber Asphalt Pav. Co. v. Morris, Judge (C.C.A.) 132 F. 945, 67 L.R.A. 761 (Opinion by Judge Sanburn) ; State of Louisiana ex rel. City of New Orleans v. Judge, 52 La.Ann. 1275, 27 So. 697, 51 L.R.A. 71 and note; State ex rel. National Bank v. Johnson, 105 Wis. 164, 83 N.W. 320; People v. Board of Commissioners, 176 Ill. 576, 52 N.E. 334; In re Snyder, 184 Wis. 10, 198 N.W. 616; Illinois State Board of Dental Examiners v. People, 123 Ill. 227, 13 N.E. 201; State ex rel. Spence v. Dick, 103 Wis. 407, 79 N. W. 421; State ex rel. Southern Colonization Co. v. Circuit Court, 187 Wis. 1, 203 N.W. 923, 48 A.L.R. 894; State v. Williams, 136 Wis. 1, 116 N.W. 225, 20 L.R.A. (N.S.) 941; Riesland v. Bailey, 146 Or. 574, 31 P.(2d) 183, 92 A.L.R. 1207; 38 C.J. 598; National Mutual Savings & Loan Ass’n v. McGhee, 38 N.M. 442, 34 P.(2d) 1093; Ex parte Newman, 14 Wall. 152, at page 165, 20 L.Ed. 877; McClellan v. Carland, 217 U.S. 268, 30 S.Ct. 501, 54 L.Ed. 762; In re Press Printers & Publishers (C.C.A.) 12 F.(2d) 660.
However, we deem it unnecessary for us to consider at this time the question of the extent of our authority. It is apparent that the learned district judge throughout the three trials expected a verdict of a jury to finally settle the questions of fact. With the clarification of the foregoing issues, we feel that the trial judge will view this case in a somewhat different light, and, notwithstanding his expression of faith in the wisdom of the verdict of juries, and his intention to again try the case to a jury, that he will reconsider that determination.
We have no hesitancy in saying that now, after three trials, before incurring the delay and expense of another trial, it is the duty of the chancellor, with such aid as counsel can render, to review the record and on the evidence submitted, or with additional evidence, to earnestly endeavor by his own independent judgment to adjudicate the controversy satisfactorily to his conscience. The rule to show cause will be discharged without prejudice.
It is so ordered.
BICKLEY, J., concurs.