§ 1183. Probate Originally Affected Personal Estate Only, but Now Both Are Subject to Probate Jurisdiction.

The early rule in England, and one existing until a late date, was that the probate of a will concerned personal property only, the executor of a will, or the administrator in the case of intestacy, having no concern with the real property. A will involving realty only, and no personalty, was not subject to probate.1 If the will affected both realty and personalty, it was required to be probated, but this did not give the executor the power to take charge of or administer the realty.15 The Court of Probate Act1o provided that, in proving a will in solemn form, unless the will affected personalty only, the heirs, devisees and others interested in the real estate affected by the will should be cited to see the proceedings, and thereupon the decree of the court as to the validity or invalidity of the will became binding upon all concerned. This act, however, did not change the rule that wills of realty only were not required to be probated.17 Nor was there any change by the Supreme Court of Judicature Act, 18 but by the Land Transfer Act, 1897, statute of 60 and 61 Vict., ch. 65, § 1, it is provided that lands vest in the personal representative the same as chattels, and this includes realty over which the testator had a general power of appointment, and further, that probate of wills and letters of administration of estates of intestate decedents may be granted in respect to realty, although

14 Swinb., Wills, pt. 6, § 3, pl. 5; Habergham v. Vincent, 2 Ves. Jun. 204, 230; Goods of Drummond, 2 Sw. & Tr. 8; Tompkins v. Tompkins, Fed. Cas. No. 14091, 1 Story 547.

15 Partridge's Case, 2 Salk. 552.

16 Stat. of 20 and 21 Vict., ch. 77, §§ 61, 62.

17 Goods of Bootle, L. R. 3 P. & D. 177; Barraclough v. Greenhough, L. R. 2 Q. B. 612.

18 Stat. of 36 and 37 Vict., ch. 66 (A. D. 1873).

there is no personal estate. Independently of this act, probate of wills and administration of estates were granted only as to personalty.

The rule in the United States is the same as that now existing in England, realty and personalty, whether disposed of by will or comprising the estate of an intestate decedent, are both subject to the jurisdiction of the probate court. 19

§1184. What Courts Now Exercise Probate Jurisdiction.

In England, by the Court of Probate Act, 1857,20 the Court of Probate was created, to which was given the same powers in regard to administration of estates of personal property as had formerly been exercised by the prerogative court of the Archbishop of Canterbury. Thus probate jurisdiction was taken from the ecclesiastical courts. Later, by the Supreme Court of Judicature Act, 1873,21 the various courts, including the court of probate, were united in one supreme court, one department of which now exercises probate jurisdiction.

Since the Confederation of the original American colonies, ecclesiastical courts as in England have had no existence here. The first probate courts were established in this country by an act of the Massachusetts General Court in 1784.22 In some states an officer is appointed by law who exercises jurisdiction in probate as did the ordinary in England, but with greater powers. Thus there

19 McClaskey v. Barr, 54 Fed. 781; Gaines v. Chew, 2 How. (U. S.) 619, 11 L. Ed. 402; Beyer v. LeFevre, 17 App. Cas. (D. C.) 238; Goodman v. Winter, 64 Ala. 410, 38 Am. Rep. 13; Taylor v. Tibbatts, 13 B. Mon. (52 Ky.) 177, 181;

Woodbridge v. Banning, 14 Ohio
St. 328.

20 Stat. of 20 and 21 Vict., ch. 77.
21 Stat. of 36 and 37 Vict., ch. 66.

22 Rev. Stats. Mass. 1784, ch. 46; Wales v. Willard, 2 Mass. 120, 124.

may be a Register of Wills, but who is also a judge and who in admitting a will to probate exercises judicial functions.28 But generally, in the United States, probate jurisdiction is vested in the local courts of the various states. Such courts are designated by different names, such as circuit, district, superior, probate, surrogates', or orphans' courts, and upon which are conferred by statute jurisdiction of all matters pertaining to the administration of estates, the proof of wills, and the appointment of executors and administrators, together with jurisdiction as to accounts, final settlement and distribution. These courts have substantially the same powers as were formerly exercised by the ecclesiastical and chancery courts of England. The administration of estates is peculiarly under the jurisdiction of the courts of probate. Such courts, as a general rule, exercise many features which originally belonged to courts of equity, and the courts last named do not interfere with matters involving the probate of wills or the administration of estates except in special cases involving fraud or some essential equitable feature regarding which the probate court is not competent to give adequate relief.24 In a great number of the jurisdictions in the United States, the rules of law for the administration of estates of

23 Loy v. Kennedy, 1 Watts & S. (Pa.) 396.

24 Vaughan v. Suggs, 82 Ala. 357, 2 So. 32; Freeman v. Reagan, 26 Ark. 373; Deck v. Gerke, 12 Cal. 433, 73 Am. Dec. 555; McGowan v. Lufburrow, 82 Ga. 523, 14 Am. St. Rep. 178, 9 S. E. 427; Grattan v. Grattan, 18 Ill. 167; Winslow v. Leland, 128 Ill. 304, 21 N. E. 588;

Kothman v. Markson, 34 Kan. 542, 9 Pac. 218; Alexander v. Leakin, 72 Md. 199, 19 Atl. 532; Garton v. Botts, 73 Mo. 274; Middleton v. Middleton, 35 N. J. Eq. 115; Peyser v. Wendt, 87 N. Y. 322; In re Underhill, 117 N. Y. 471, 22 N. E. 1120; Finger v. Finger, 64 N. C. 183; Adams' Heirs v. Adams, 22 Vt. 50.

decedents, whether testate or intestate, have been minutely enacted in statutory form, but such rules largely follow those long settled by courts exercising jurisdiction in probate and in equity in England and America.

The United States Federal Courts have no original probate jurisdiction,25 although, when other jurisdictional facts have been presented, such as a controversy between citizens of different states, such courts have heard cases involving the construction of wills or the revocation of the probate thereof.26 And the courts of the United States have jurisdiction in equity to compel executors and administrators to account, and a fraudulent judgment obtained in the probate court is not conclusive on them.27

§ 1185. Jurisdiction of Court as Affected by Domicile of Testator and Situs of Real Property.

Every testator has a domicile which, generally speaking, is his place of permanent residence; yet one may have several residences, but can have only one domicile. Domicile is a question of fact.28 Personal property fol

25 Gaines v. Fuentes, 92 U. S. 10, 23 L. Ed. 524; Ellis v. Davis, 109 U. S. 485, 27 L. Ed. 1006, 3 Sup. Ct. 327; McDonnell v. Jordan, 178 U. S. 229, 44 L. Ed. 1048, 20 Sup. Ct. 886.

26 Wood v. Paine, 66 Fed. 807; Williams v. Crabb, 117 Fed. 193, 59 L. R. A. 423, 54 C. C. A. 213; Sawyer v. White, 122 Fed. 223, 58 C. C. A. 587; Gaines v. Fuentes, 92 U. S. 10, 23 L. Ed. 524.

In Colton v. Colton, 127 U. S. 300, 32 L. Ed. 138, 8 Sup. Ct. 1164, it was held that a decree of the probate court of California merely

distributing the estate to the defendant and discharging her as executrix did not show an adjudication of an alleged trust in the will involved, and that a construction thereof by the federal court was proper.

27 Payne v. Hook, 7 Wall. (U. S.) 425, 19 L. Ed. 260; Griffith v. Godey, 113 U. S. 89, 28 L. Ed. 934, 5 Sup. Ct. 383. See, also, Rich v. Bray, 37 Fed. 273, 2 L. R. A. 225; Arrowsmith v. Gleason, 129 U. S. 86, 32 L. Ed. 630, 9 Sup. Ct. 237.

28 As to what is meant by domicile, see §§ 266, 267. As to the

1

lows the person and the rules of succession 20 and those governing the execution and construction of bequests of personal property are determined by the laws of the testator's domicile at the time of his death.80 Rights in real property are governed by the law of its situs,31 and devises of real property are controlled by the law of its situs.32

Since personalty follows the person, the court of the testator's domicile may have jurisdiction of all personalty which is not actually within the territorial limits of such jurisdiction.33 The usual and proper proceeding is that a will disposing of personalty, although it may also dispose of realty located in various jurisdictions, should first be presented for probate to the court of the testator's last domicile; but since the law of the situs governs devises of real property, the will of a testator disposing of realty may be first presented to the probate court of the jurisdiction wherein such real property is

domicile of a married woman, see § 268. As to the law governing the rights of a wife or child, see § 276. As to the effect of a change of domicile by the testator subsequent to the execution of his will, see § 275. As to which law gov erns the construction of and rights under a will in case of a conflict, see 88 265-296.

29 See § 270.

80 See § 273 as to general rule, and § 274 as to decisions to the contrary.

See 272 as to which law governs the determination of the testator's intent as expressed in his will.

81 See § 269.

82 See § 271. 33 Harrison V. Nixon, 9 Pet. (U. S.) 483, 9 L. Ed. 201; Cameron v. Watson, 40 Miss. 191; Holmes v. Remsen, 4 Johns. Ch. (N. Y.) 460.

84 McDonnell v. Farrow, 132 Ala. 227, 31 So. 475; Matter of Wickes, 128 Cal. 270, 49 L. R. A. 138, 60 Pac. 867; In re Olson's Will, 63 Iowa 145, 18 N. W. 854; Miller v. Swan, 91 Ky. 36, 14 S. W. 964; Stanley v. Safe Deposit & Trust Co., 87 Md. 450, 40 Atl. 53; Bailey v. Osborn, 33 Miss. 128; Matter of Zerega, 58 Hun 505, 12 N. Y. Supp. 497; Matter of McKeon, 26 Misc.