OPINION OF THE COURT BY RICHARDSON, C.J.

Respondent-appellant Olive Lorenzo appeals from a jury verdict barring her dower interest in favor of petitioner-appellee, the executor of the estate of Manuel P. Lorenzo.

We reverse the judgment and remand the case.

On July 21, 1972, appellee filed a petition to probate the estate of Manuel P. Lorenzo. The petition provided that the deceased left no spouse. On October 5, 1972, the petition was amended naming Olive Lorenzo as decedent's widow. On January 29, 1974, appellee petitioned to bar appellant's dower interest pursuant to HRS § 533-9 on grounds of wilful and utter desertion. A non-jury trial before the Honorable Shunichi Kimura of the Circuit Court of the Third Circuit was held on June 18, 1974, pursuant to HRS § 531-1. This trial resulted in a verdict for appellee.

On August 30, 1974, appellant moved for a trial by jury pursuant to HRS § 531-2 on the issues of fact decided by the court in its prior ruling. In support of her motion for jury trial, appellant argued that HRS § 531-2, or in the alternative, Article I, Section 13, of the Constitution of the State of Hawaii granted her the right to a jury trial. The motion was granted by Judge Kimura over appellee's objection.

A trial before a jury with Judge Kimura presiding was held on April 28 and 29, 1975. Appellee renewed his objection to the jury trial and appellant objected to Judge Kimura presiding over the jury trial because he had presided over the original trial. Both objections were denied and the case was presented. At the conclusion of appellee's case, appellant moved for a directed verdict which was denied by Judge Kimura. She also unsuccessfully objected to the court's denial of her proposed jury instructions D, E, and F, and to the submission of appellee's proposed instructions 5 and 2. After due deliberation, the jury rendered a verdict barring appellant's dower interest.

The issues presented on this appeal and the order in which they will be discussed are:

I. Whether the trial judge erred in granting appellant's motion for a jury trial.

II. Whether the trial judge erred in presiding over the jury trial when he had presided over the original trial.

III. Whether the trial judge erred in denying appellant's proposed jury instructions D, E, and F and in granting appellee's instructions 2 and 5.

We answer the first two issues in the negative, but find that the trial judge erred in his disposition of jury instructions E, 5 and 2.

I.

Appellee in his answering brief contends that Judge Kimura erred in granting the jury trial. Appellant responds with the argument that this court should not even consider this issue because appellee failed to file a notice of appeal pursuant to Rule 73(a) (2) of the Hawaii Rules of Civil Procedure and that appellant herself did not specifically raise the issue on appeal. We agree that appellee should have noticed a cross appeal on this issue, but we may consider the contention because it is subsidiary to the other issues raised by appellant. Furthermore, Judge Kimura did not err in granting the jury trial, because we find that Article I, Section 13 of the Constitution of the State of Hawaii confers such a right.

Rule 3(b) (3) of the Rules of the Supreme Court states that appellant's questions presented in his opening brief "will be deemed to include every subsidiary question fairly comprised therein." Appellant raises several issues on appeal concerning the propriety of certain of the trial judge's rulings during the jury trial. These issues can only be reached if the jury trial was properly granted in the first place. As we stated in Shoemaker v. Takai, 57 Haw. 599, 607, 561 P.2d 1286, 1291 (1977): "It seems that no cross appeal is necessary in order that an appellate court may review a question closely related, in substance, to a question raised by the appeal." We believe the issue of whether the trial court erred in granting appellant's motion for jury trial is a subsidiary question underlying the other issues raised by appellant, and thus, a proper question for this court's consideration.

Although Judge Kimura did not specify his grounds for granting appellant's motion for jury trial, appellant argues that the jury trial in this case is authorized under HRS § 531-2 or under the Constitution of the State of Hawaii. For the reasons stated infra, we agree with appellant's latter ground and find that the jury trial in this case was proper pursuant to Article I, Section 13 of our state constitution.

HRS § 531-1 provides that matters of probate and of administration shall be heard and determined by a judge without the intervention of a jury in the first instance. However, HRS § 531-2 qualifies § 531-1 by allowing a jury trial in the same case after the probate judge's decision "whenever the value of the estate of any deceased person exceeds $500" and the claimant takes "by virtue of any will or testamentary devise or by virtue of the statutes of descent of property in the state." Manuel Lorenzo's estate is valued over $500. However, Olive Lorenzo, claimant in this case, claims by way of a dower interest, an interest not by virtue of any will or statute of descent. In Re Estate of Brenig, 7 Haw. 640 (1889); Carter v. Carter, 10 Haw. 687 (1897); Y. Ahin v. Opele, 17 Haw. 525 (1906); Estate of Castle, 25 Haw. 108 (1919). Thus, appellant's demand for a jury trial cannot be based on HRS § 531-2.

Article I, Section 13 of the Constitution of the State of Hawaii preserves the right of trial by jury in suits at common law. Although dower was a creature of the common law, a number of states have modified the concept by statute. The Hawaii Legislature has codified the common law dower right in its enactment of HRS § 533-1. Despite dower's current statutory form, its purpose and effect remain the same as that established at common law — as a marital right created to provide an assured means of support for the surviving wife. G. THOMPSON, 4A COMMENTARIES ON THE MODERN LAW OF REAL PROPERTY § 1911 (repl. 1961). Thus, Hawaii's statutory dower rights do not create an entirely new cause of action but originate in the common law. Merely because the concept of dower has been statutorily modified does not alter its essential character as being part of the common law. In fact, this court in Estate of Castle, 25 Haw. 108, 116 (1919), stated: "[T]he nature of the estate which the wife has by way of dower under the statute is the same as under common law dower so that anything that may be said of common law dower is equally applicable to this estate." See generally Carter v. Carter, 10 Haw. 687, 693 (1897). Accordingly, the right to jury trial as preserved in suits at common law also applies to suits involving dower claims. The trial judge correctly granted appellant's motion for a trial by jury.

II.

Appellant asserts that under HRS § 601-7(a) it was error for Judge Kimura to preside over both the probate trial without a jury and the subsequent jury trial of the same case. HRS § 601-7(a) reads in pertinent part:

§ 601-7 Disqualification of judge; relationship, pecuniary interest, previous judgment, bias or prejudice. (a) No person shall sit as a judge in any case in which his relative by affinity or consanguinity within the third degree is counsel, or interested either as a plaintiff or defendant, or in the issue of which the judge has, either directly or through such relative, any pecuniary interest; nor shall any person sit as a judge in any case in which he has been of counsel or on an appeal from any decision or judgment rendered by him.

Our disposition of this issue turns on whether the second jury trial was an "appeal" within the meaning of the section. The purpose of the statute is to "secure to litigants the right of a fair and impartial review of judgments and decisions . . . before judges other than those who themselves rendered the judgments or decisions thus to be reviewed." Estate of Beckley, 31 Haw. 150, 154 (1929). Although we indicated in our discussion of issue I supra that the jury trial in this case was not proper pursuant to HRS § 531-2 but proper under our state constitution, the effect of granting the jury trial is the same under both sections — namely to permit an "aggrieved party" an opportunity to try the same issues of fact before a broader panel — a jury of his peers. The judge in this second instance thus sits as if the first trial did not occur; in essence, the second trial before the jury is a trial de novo because the issues of fact decided in the first trial are not given res judicata effect in the second one. Consequently, in this case Judge Kimura was not reviewing and reversing his prior decision; rather, his function at the second trial was to preside over the jury and instruct them as to matters of law. His presence at the jury trial was not as a judge on appeal but as a judge in a completely new trial. Therefore, he was not disqualified by virtue of HRS § 601-7(a).

III.

Appellant next urges this court to find that her proposed jury instructions D, E, and F were improperly refused and that appellee's instructions 5 and 2 were erroneously accepted and given to the jury. We are of the opinion that appellant's instructions D and F were properly denied but that her proposed instruction E should have been granted. Furthermore, we conclude that appellee's instruction 5 should have been refused and we find that instruction 2 as given was incomplete in that it failed to incorporate the applicable burden of proof as to specific elements.

Appellant first argues that the trial court's denial of her requested instruction D constituted prejudicial error, requiring reversal of the judgment or, in the alternative, remanding the case for a new trial.

The question on review of instructions is not whether they were technically correct but whether appellant could have suffered prejudice on their account. In determining the sufficiency of a particular instruction, it is not to be considered apart from its context, or the rest of the charge. State v. Travis, 45 Haw. 435, 368 P.2d 883 (1962); State v. Napeahi, 57 Haw. 365, 556 P.2d 569 (1976).

The statutes applicable to the present discussion are HRS § 533-1 and § 533-9. Although HRS § 533-1 gives the wife a dower interest in her husband's property, she may nevertheless be lawfully barred from this interest under § 533-9 if she has "wilfully and utterly deserted her husband" for at least a year. Although the statute does not specify the elements constituting "wilful and utter desertion," the general rule is that there must be (1) a physical separation, (2) without the consent and against the will of the other spouse, and (3) a separation without justification. Cf. Kiakona v. Kiakona, 36 Haw. 49 (1941) (involving desertion as ground for divorce).

Appellant's instruction D sought to impose a presumption involving these elements. The instruction stated:

In the absence of evidence to the contrary, there is a presumption of law that a physical separation of husband and wife is with the consent of the husband and not against his will and with justification.

Appellant's sole authority for the instruction is the dissenting opinion from this court's ruling in Kiakona v. Kiakona, 36 Haw. 49 (1942). Kiakona was a divorce case based on R.L.H. § 4460 (1935) which required "utter and wilful desertion" as one of the grounds for divorce. The majority affirmed the divorce decree in favor of the husband-appellee, finding sufficient evidence to support the wife's utter and wilful desertion. The dissent advocated adopting a presumption that the wife's leavetaking was with the husband's consent, citing as rationale for such a policy the "paramount interest of the Territory in the preservation of the marital status." Id. at 55. The effect of such a presumption in the present case would have resulted in imposing upon appellee the burden of producing evidence showing the nonexistence of the presumed fact, as he was the party against whom the presumption was directed. McCORMICK'S HANDBOOK OF THE LAW OF EVIDENCE § 336 (2d ed. 1972). However, appellee also had the ultimate burden of persuasion of proving appellant's desertion — that the physical separation occurred without his consent and without justification. In Re Acuna's Will, 35 Misc.2d 247, 229 N.Y.S.2d 859 (1962); In Re Campbell's Estate, 186 Misc. 842, 65 N.Y.S.2d 164 (1946); In Re White's Estate, 126 N.Y.S.2d 375 (1951); In Re Lamo's Estate, 63 Misc.2d 840, 313 N.Y.S.2d 781 (1970); In Re Holman's Estate, 46 Misc.2d 809, 260 N.Y.S.2d 885 (1965); In Re Crittenden's Estate, 263 App. Div. 1063, 34 N.Y.S.2d 307 (1942); In Re Barc's Estate, 177 Misc. 578, 31 N.Y.S.2d 139 (1941); Application of Schinzing's Estate, 2 Misc.2d 661, 150 N.Y.S.2d 305 (1956).

It was not unreasonable for the trial judge to deny the instruction since the presumption would have required appellee to establish facts that he already had the burden of proving. As Professor McCormick states in his discussion of presumptions and burdens of proof:

There is no more need to tell the jury why one party or the other has the burden of persuasion where that burden is fixed by a presumption than there is where the burden is fixed on the basis of policies apparent from the pleadings. If the policy considerations existing at the pleading stage and those arising from the evidence both place the burden of persuasion on the same party, we can be fairly certain that the burden is in the right place. However, unless we are willing to increase the measure of persuasion nothing can be gained by informing the jury of the coincidence. The word "presumption" would only tend to confuse the issue.

McCORMICK, supra at 829. The policies behind a presumption are usually fully satisfied by placing the burden of persuasion upon the adversary. Thus, instruction D would have been superfluous and serve only to confuse the jury, especially in view of the fact that the jury already was informed as to this point in appellant's instruction 2. Instruction 2 read in pertinent part: "Petitioner has the burden of proof to demonstrate by a preponderance of the evidence that the Respondent wilfully and utterly deserted her husband." We conclude that the trial judge's denial of the instruction did not result in prejudice to appellant.

Appellant also argues that the trial court's denial of her proposed instruction F constituted prejudicial error. That instruction read:

In order for Petitioner to demonstrate by a preponderance of the evidence that the Respondent wilfully and utterly deserted her husband, Petitioner must demonstrate by a preponderance of the evidence that Respondent's husband made a good faith effort to seek the return of his wife.

As support for this instruction, appellant cites Bartels v. Bartels, 31 Haw. 491 (1930), a divorce case in which we held that there was no wilful and utter desertion on the part of the wife in living apart from her husband pending her bona fide suit against him for separate maintenance, and Vasconcellos v. Vasconcellos, 39 Haw. 552 (1951), where we reviewed a finding that the offer of reconciliation by the husband in a divorce action was not made in good faith. However, in neither case did this court explicitly state that such a request of reconciliation was mandatory.

One Hawaii case suggests that whether a good faith effort of reconciliation must be made is dependent on whether the misconduct of the deserted party justified the desertion. The factor of misconduct must first be ascertained before determining whether desertion was justified and whether a request to return must be made. Tabios v. Tabios, 38 Haw. 1 (1948). In Santos v. Santos, 26 Haw. 124 (1921), we stated that the party at fault in the original separation desiring to prevent desertion from becoming a ground for divorce must in good faith offer to return without other conditions. "The party not at fault need not solicit the return of the other who has left the home without good cause." Id. at 127. Cf. Mattos v. Mattos, 31 Haw. 568 (1930) (innocent party who refuses to accept deserting party's good faith offer to reconcile cannot maintain action for divorce on ground of such desertion). Furthermore, although there are a number of cases to the contrary, most jurisdictions follow the rule that a blameless petitioner deserted by the respondent may sue for a divorce on those grounds without first seeking reconciliation. Bates v. Bates, 153 Pa. Super. 133, 33 A.2d 281 (1943); Procopio v. Procopio, 174 Pa. Super. 157, 100 A.2d 115 (1953); Wittenberg v. Wittenberg, 56 Nev. 442, 55 P.2d 619 (1936); Stumpf v. Stumpf, 228 Md. 350, 179 A.2d 893 (1962); Solomon v. Solomon, 290 N.Y. 337, 49 N.E.2d 470 (1943); Alden v. Alden, 21 Conn. Super. 301, 154 A.2d 522 (1959); Gaskins v. Gaskins, 175 A.2d 783 (1965); Hales v. Hales, 207 A.2d 657 (1965).

Instruction F required appellee to show by a preponderance of the evidence that the decedent, Manuel Lorenzo, had made a good faith effort to reconcile with appellant. However, the instruction was misleading because it failed to state that such an effort need only be made if decedent himself had been guilty of misconduct, justifying appellant's departure. No clarifying language in the instruction or a separate instruction informing the jury as to this point was given. Thus, the court was correct in denying Instruction F.

Appellant's proposed instruction E, which was refused by the trial court reads:

In order to demonstrate by a preponderance of the evidence that Respondent's separation from her husband was without justification, Petitioner must demonstrate by a preponderance of the evidence that the conduct of Respondent's husband would not justify a reasonable woman under similar circumstances in living apart from her husband.

Vasconcellos v. Vasconcellos, 39 Haw. 552 (1951), and Kiakona v. Kiakona, 36 Haw. 49 (1942), were cited as cases providing the basis for this instruction. Appellant contends that the failure to give this instruction was prejudicial because it prevented her from arguing that regardless of whether the jury concluded that decedent Lorenzo had committed adultery, appellant's testimony as to her observations and conversations established reasonable grounds for her separation and therefore her separation was justified.

The instruction correctly placed the burden of persuasion on petitioner-appellee. As the party seeking forfeiture he had the task of establishing the elements of "wilful and utter desertion" of which lack of justification was one. Kiakona v. Kiakona, 36 Haw. 49 (1942). The Hawaii cases on divorce concerning this element indicate that it is not to be determined by a set, rigid standard but rather one that turns on what a reasonable person would do under similar circumstances. As this court stated in Tabios v. Tabios, 38 Haw. 1, 6 (1948):

But no fixed rule of general application can be formulated as to what extent misconduct of one spouse must reach in order to afford the other reasonable or just cause for separation, each case standing upon its own particular facts and circumstances. . . . Pertinent thereto, the great weight of judicial opinion holds that misconduct of one spouse justifying the other's separation from the matrimonial domicile must be of such serious nature that the essential purpose of the marriage relationship would be defeated or the circumstances must be such that the injured spouse has good reason to believe that cohabitation can no longer be continued with due regard to safety, health or self respect. (Citations omitted.)

The failure to give the instruction had the effect of foreclosing the jury's consideration of other events and factors showing decedent's misconduct (besides those involving his alleged adulterous behavior) especially when read in conjunction with instruction 5. Thus, if there was insufficient evidence to support a finding that Manuel Lorenzo had committed adultery, appellant would be precluded from showing other justifications for her departure. In effect it was easier for the jury to find that her departure was unjustified. This clearly resulted in prejudice to her and instruction E should have been given.

Appellant further argues that appellee's instruction 5 granted by the trial court should have been denied. That instruction reads:

It is the position of Olive Lorenzo that she was justified in leaving her husband, Manuel Lorenzo, because of the adultery of Manuel Lorenzo. In order to demonstrate by a preponderance of the evidence that Manuel Lorenzo committed adultery, in the absence of direct evidence of sexual intercourse, Olive Lorenzo must demonstrate by a preponderance of the evidence (1) an adulterous disposition, that is, licentious desire on the part of Manuel Lorenzo for the paramour, Mary Silva, and (2) opportunity for intercourse between Manuel Lorenzo and the paramour, Mary Silva.

Appellant contends that the instruction was prejudicial because it wrongly placed the burden of proof as to justification on appellant. In Hawaii, the petitioner in a divorce action has the burden of proving "utter and wilful desertion." The husband must show not only that his wife left him and refused to return but also that the wife's departure was unjustified. Kiakona v. Kiakona, 36 Haw. 49 (1942). Thus, as petitioner or complainant in this case, appellee bore the burden of establishing lack of justification.

The effect of appellee's instruction 5 was to shift the burden of persuasion from appellee to appellant, requiring her to show justification for the separation. Bealor v. Hahn, 117 Pa. 169, 11 A. 776 (1887), and a number of Pennsylvania courts have adopted the rule that upon a showing of physical separation, utter and wilful desertion was presumed and the burden was upon the deserting party to show that the leavetaking was justified. However, the Pennsylvania approach in adopting this shifting burden rule is a minority one. A larger number of the other states maintain that the burden of proving the ground of forfeiture rests on the party asserting it and this burden does not shift during the course of the trial. Furthermore, the instruction conflicted directly with instructions E and 2 as to the burden of proof since both those instructions stated that petitioner-appellee had the burden to demonstrate that appellant wilfully and utterly deserted her husband.

Both in civil and in criminal cases the instructions of the court must be read together as one connected whole, to ascertain whether they correctly declare the law. The omissions or inaccuracies of one instruction may be cured by the contents of the other instructions, or some of them, and if, when the instructions of the court are considered as a whole, they correctly state the law and are not inconsistent or misleading, the fact that a particular instruction or isolated paragraph may be objectionable, as inaccurate or misleading, will not constitute ground for reversal. (Citations omitted.)

State v. Travis, 45 Haw. 435, 368 P.2d 883, 886 (1962). Accordingly, the trial judge's granting of instruction 5 resulted in prejudice to appellant, because not only was it inconsistent with other instructions that were given, but it also wrongly required appellant to make a showing — by a preponderance of the evidence — of the facts and circumstances justifying her departure.

Finally, instruction 2 also relates to the burden of proof issue. That instruction submitted by appellee and granted by the trial court correctly stated the applicable law. However, the second paragraph of the instruction was misleading because it failed to clearly specify that the petitioner had the burden of proving lack of justification and consent. On remand, the instruction should be altered to incorporate this essential element.

The judgment of the trial judge barring appellant's dower interest is reversed and the cause remanded for a new trial in accordance with this opinion.