Judge of probate

“ Thus, if a probate court, invested only with authority over wills and the settlement of estates of deceased persons, should proceed to try parties for public offences, jurisdiction over the subject of offences being entirely wanting in the court, and this being necessarily known to its judge, his commission would afford no protection to him in the exercise of the usurped authority. ”

“ In a preceding instruction which the court had given to the jury, upon the application of the defendant himself, the probate of the deed by Governor Livingston before Judge Hobart, was treated as prima facie evidence of a delivery. It was there stated that the probate was 'only prima facie evidence, or evidence from which a delivery may be presumed, and may be rebutted by direct or circumstantial evidence, which raises a contrary presumption.' Is it not plain, then, that, if not so rebutted, the plaintiff is entitled to recover? What is prima facie evidence of a fact? ”

“ In support of the decision of the circuit court, it has been insisted, that the power of the judge of the probate court to appoint a clerk of probate pro tempore, is limited to the term of the court, and to the exigencies and necessities of the term; and does not extend to a period beyond the term, nor to any acts performed by the person so appointed, out of court. ”

“ Clearly, an order of probate, based upon a finding by the jury upon issues as to the competency of the testator to make a will, is one involving the merits. If so, how is it possible, in view of the express words of the statute, to question the jurisdiction of the general term to review such final order of probate? ”

“ The focus of probation is not on how society views the offense, but on how the sentencing judge views the offender. 'Through the social investigation of the probation officer and the power to place suitable cases on probation,' the House Judiciary Committee stated in support of the first probation bill to be signed into law, 'the court is enabled to discriminate and adapt its treatment to fit the character and circumstances of the individual offender.' H.R. Rep. ”

“ 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. ”

“ If, for instance, the action be upon a money demand, the court, notwithstanding its complete jurisdiction over the subject and parties, has no power to pass judgment of imprisonment in the penitentiary upon the defendant. If the action be for a libel or personal tort, the court cannot order in the case a specific performance of a contract. If the action be for the possession of real property, the court is powerless to admit in the case the probate of a will. Instances of this kind show that the general doctrine stated by counsel is subject to many qualifications. ”

“ The determination of the probate court between private parties was enforceable without reexamination in the circuit court. [16] Even the right to execution is not essential to a complete judicial process. [17] The order entered was a final determination of the amounts due the estate by the United States on this claim and cross-claim if the probate court had jurisdiction to render the order against the petitioner. ”

“ A court of probate must, indeed, inquire into and be satisfied of the fact of the death of the person whose will is sought to be proved or whose estate is sought to be administered, because, without that fact, the court has no jurisdiction over his estate ”

“ There is no intimation given that a direct action to annul the will and restrain a decree admitting it to probate might not be maintained in a Federal as well as in a State court, if jurisdiction of the parties was once rightfully obtained. ”

“ The suggestion that the order of the probate court is in reality not a judgment but only a 'judicial ascertainment' of credits does not affect our conclusion. No judgment against the United States is more than that. ”

“ It is elementary that probate proceeding by which jurisdiction of a probate court is asserted over the estate of a decedent for the purpose of administering the same is in the nature of a proceeding in rem, and is therefore one as to which all the world is charged with notice. ”

“ Thus, if a state law provides for any form of notice on an application to probate a will, and authorizes a contest before the admission of the writing to probate, then it would follow, if the words 'suit or action of inter partes' embraces such a contest, the proof of wills, if contested by a citizen of another state or alien, would be cognizable in the courts of the United States, and hence not under the exclusive control of the state probate court. ”

“ If any person interested shall, within two years after probate had, appear, and by bill in chancery contest the validity of the will, an issue shall be made up whether the writing produced be the last will of the testator or testatrix or not; which shall be tried by a jury, whose verdict shall be final between the parties, saving to the court the power of granting a new trial, as in other cases; but if no person appear in that time the probate shall be forever binding ”

“ Other objections to the validity of the action are raised-as that the late administrator, Beall, has not been called to account in the probate court, and no decree has been passed against him, and that no order of the probate court was obtained for leave to prosecute the bond. Many authorities show that these preliminaries are necessary to sustain the action. ”

“ III., c. 78, requiring that certain proceedings of justices should, in relation to closing and opening ways, in order to give them validity, appear on the face of those proceedings, in a prescribed schedule or form set forth in the statute; is considered as wholly inapplicable.
If, then, the appointment and the acts of the clerk of probate depended for their validity upon the principles which apply to the acts of officers de facto, a just interpretation of the authorities adduced in behalf of the plaintiff in error, gives validity to both. ”

“ It cannot be pretended that the forms of pleading may not be dispensed with by sutors; as it is certain that the benefit of matters both of substance and form may be lost by mere neglect or omission, where no intention of the renunciation of either is apparent or ever existed. We must conclude that the District Court had rightfully jurisdiction of the cause removed into it from the Probate Court; that its judgment is and must be binding upon the parties to it, until it shall be annulled or reversed by a competent authority. ”

“ The defendants pretend that complainants have no right to require payment of their judgment out of said assets, because they have not established the claims upon which the judgment is founded before the probate court of Panola county, and had the same allowed by said court, but complainants are advised and insist that such allowance by said probate court is not necessary. ”

“ In proving a will, the executor may now either employ a solicitor to prepare the affidavits and take all trouble off his hands, as mentioned above, or he may apply personally at the registry for probate. Facilities for so doing are provided by law, and the grant is obtained at a lower charge than would have to be paid if the services of a professional man were engaged. The modus operandi is as follows: The executor himself lodges the will in the probate registry, and furnishes to the officers there the particulars already enumerated as to the testator, himself, and the property. ”

“ In order that one complainants may have the means of making, if they shall see fit, a formal application to the Probate Court, for the proof of the last will and the revocation of the first, having the answers of the executors, jurisdiction as to this matter may be sustained. ”

“ But it was almost universally recognized that no will could have effect, for any purpose, until admitted to probate and record by the local authority, although in some states, while the original probate was conclusive until set aside, for all purposes and as to all persons, in others it was conclusive, while in force at all, only as to personalty and for the purposes of administration, and not as a muniment of title as to devises. ”

“ At common law, he might, before proving the will in the probate court, not only take possession of the property, but sell or dispose of it, pay debts of the estate, receive or release debts owing to it, bring actions for property which was in the testator's actual possession, and do almost any other acts incident to his office, except that he could not maintain any other actions without producing a copy of the probate and letters testamentary at the trial. ”

“ And obviously, as the caveator under that law has the burden of proving the want of mental capacity in the testator before the will has been probated, he is not relieved of this burden when challenging such capacity in a proceeding instituted to revoke the probate of a will after the presumption of the testator's sanity has been fortified by a decree of probate made in solemn form after notice to the parties in interest. ”

“ When the State laws, as a condition for the final settlement of a probate decree require either the revocation of the interdict or the appointment of a curator one or the other thing must be done. It is not enough for the party to show that he has a right to have one of them done. ”

“ The courts of the United States, on removal of the proceeding from the probate court, were clothed with no greater power in the premises than the courts of the state would have possessed if their jurisdiction had been preserved. ”

“ The mere fact that the proof may have established that, after the death of the testator, alterations were made, which did not materially change the will, and which were not of such a nature as to justify the presumption that the testator had revoked the will, in whole or in part, would not have authorized a verdict the result of which would have been to set aside the probate of the will. ”

“ Each of the persons so appointed confessed in the answer filed in his own behalf all the allegations of the bill, and in his answer as guardian neigher admitted nor denied those allegations. All the appointments of the guardians ad litem were made, all the answers were filed, and the issue to the jury was ordered, in that suit, and the resignation of the sole remaining executrix (who was also one of the heirs at law and guardians ad litem) was tendered and accepted in the court of probate, on one and the same day, within a week before the verdict and final decree. ”

“ The courts of the United States have no probate jurisdiction, and must receive the sentences of the courts to which the jurisdiction over testamentary matters is committed, as conclusive of the validity and contents of a will; an original bill cannot be sustained upon an allegation that the probate of a will is contrary to law. ”

“ These objects are generally accomplished by the constitution and powers which are given to the probate courts, and the modes provided for reviewing their proceedings. And one of the principal reasons assigned by the equity courts for not entertaining bills on questions of probate is that the probate courts themselves have all the powers and machinery necessary to give full and adequate relief. ”

“ This, of course, in no wise impugned the principle that all parties to a contest, in proceedings in a probate court preliminary to and during the course of administration upon the estate of the decedent, upon a matter within the jurisdiction of the court, are concluded in every other court by the decision rendered, as to the facts upon which such decision necessarily proceeded. ”

“ It might be argued that logically the only question upon the probate was the factum of the instrument. Pohlman v. Untzellman, 2 Lee Eccl. Rep. 319, 320. But the practice is well settled to deny probate if it clearly appears from the contents of the instrument, coupled with the admitted facts, that it is inoperative in the event which has happened. Parsons v. Lanoe, 1 Ves. Sr. 189, Ambler, 557, 1 Wils. 243; Sinclair v. Hone, 6 Ves. 607, 610; Roberts v. Roberts, 2 Swabey & T. 337; Lindsay v. Lindsay, L. R. 2 P. & D. 459; Todd's Will, 2 Watts & S. 145. ”