Chapter 17

PROBATE COURTS

The English common law regarded wills of lands as in the nature of conveyances, the due execution of which, if ever called in question in a lawsuit, was to be established then and there; but if never so called in question, need never be established at all by any judicial proceeding. Wills of personal property, on the other hand, were to be proved as soon as might be before an ecclesiastical court, and unless so established were ineffectual.

This difference in the treatment of the two kinds of wills was due to the legal principle that so far as personal rights and obligations were concerned the personality of the dead was, after a certain fashion, continued in existence by attributing personality to their estates. These were to be administered by some one as the "personal representative" of the former owner. This personal representative discharged his personal obligations so, far as there might be personal estate or rights of property sufficient for the purpose. He was styled an executor if designated by will; an administrator if there were no testamentary appointment. A man's lands, however, went upon his death straight to his heirs unless he had by will conveyed them to some one else. That when he died they were part of his estate did not charge them with the fulfillment of his personal obligations. For the discharge of these the creditor must resort to his personal representative. His heirs occupied no such position.

The administrator was always appointed by an ecclesiastical court and rendered his accounts to it. Long use and the existence of a State church with a regular judicial establishment, made such a system tolerable to the English people; but the new conditions under which those of them came who planted the American colonies made it both intolerable and impossible here.

While most of the colonies had an established church, none had bishops or bishops' courts. The bishop of London claimed a certain jurisdiction over all, but in none was it recognized as extending over the estates of the dead. In the Crown colonies the instructions to the Governors generally referred to it as sanctioned by the government but not as extending to the probate of wills. Some of the Governors were given _ex-officio_ full probate powers.[Footnote: "The American Jurisdiction of the Bishop of London," Transactions of the American Antiquarian Society, Vol. XIII, 188, 194, 197.]

The same considerations which early led to the general adoption of a recording system for deeds of land in all the colonies extended to wills, since they also might convey it. Such records, to attain their purpose, had to be public in the fullest sense. Nothing was allowed to go upon them which had not some kind of authoritative sanction proceeding from the State. Deeds were first to be acknowledged before a magistrate. As to wills, the practice finally came to be to require them to be established once for all as the act of the testator by a court invested with special jurisdiction for that purpose, and also over all estates of those who die leaving no will. This, if organized for that special function particularly, is ordinarily styled a Court of Probate, occasionally a Surrogate's Court or Orphans' Court. It is sometimes given, and sometimes not given, a certain authority over the real property within the State while the estate is in settlement.

All real estate left by a decedent is ordinarily made, by statute, liable for his debts in case of a deficiency of personal property, except so far as it may be charged with a right of dower. Even if it has gone into the possession of an heir or devisee, the proper Probate Court can order its sale for this purpose, if it should appear on the allowance of the administration account to be necessary.

The formal establishment or "probate" of a will does not affirm the validity of its provisions. It simply adjudges the instrument to be a will legally executed by one competent to make it and who had a home or property within the territorial jurisdiction of the court. Commonly, if not universally, an opportunity is given, either in the first instance or by appeal to a higher court, to have these questions tried before a jury.

The succession of particular persons to the property of the dead is not a matter of natural right. It rests upon positive law and is regulated by the authority of the government at its pleasure.[Footnote: United States _v._ Perkins, 163 U. S. Reports, 625.] Probate procedure is therefore wholly determined by local legislation and practice.

In many States, probate jurisdiction belongs to the county courts. In others it is invested in local courts for lesser subdivisions of territory with the purpose of cheapening the settlement of estates. In a few these local courts are very numerous, all the towns of the State being distributed into small groups and each furnished with its Probate Court, the judge of which, in many instances, has had no legal training, and receives no compensation except stated fees for such business as may actually come before him. An appeal is given from his orders to a higher court of general jurisdiction. In practice such a system works fairly well. If there are suitable lawyers in the group of towns forming a probate district, one of them who belongs to the prevailing party is generally made the judge if he will accept the office, and if he fills it well is apt to be re-elected, whichever party may then be uppermost. If a lawyer is not appointed and a case of any difficulty presents itself, the judge will probably consult some counsel in whom he feels confidence, and who will be sufficiently flattered by the request to advise him without making any charge for it.

The proper seat of administration is in the State and the local subdivision of the State where the dead man belonged. Proceedings there affect all his personal property wherever it may be found, and generally his real estate situated anywhere in the State. Real estate in another State can be affected by probate proceedings only if they take place there, by its authority. For that purpose "ancillary" administration is often taken out, that is, one designed to serve the interests of the general succession as administered in the seat of the principal administration.

Since the right of a personal representative to act for the estate of the dead comes from the positive law of the particular sovereign having the proper jurisdiction, and since no law of a particular sovereign can be enforced, by virtue of his power or anything dependent on it, outside of his territorial jurisdiction, it follows that no executor or administrator can of right maintain a suit, as such, out of the State from the laws of which he derives his authority. He may take possession of the goods of the estate found in another State, or collect debts due from its citizens if no objection be made, but if forced to claim the aid of judicial process he must first prove his title there before the appropriate Probate Court by taking out ancillary administration, in which case he will probably be compelled to give security for the proper discharge of his duties under such appointment.

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