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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