§ 1298. Jurisdiction in Matters of Probate. In the United States all proceedings regarding the probate of wills and administration of estates of decedents are largely statutory.33 Petitions for letters testamentary or of administration are distinct from actions at law or suits in equity.34 If the probate court has no jurisdiction of the subject matter the higher courts have no jurisdiction on appeal; and a decree rendered without jurisdiction of the person or of the subject matter is void.85 Jurisdiction of the person may be waived, but jurisdiction of the subject matter can not be. Such jurisdiction comprises not only the power to hear and determine, but the power to render the particular decree in the particular case.36 But after jurisdiction of the probate court is once established, the rule is that every intendment is in its favor the same as with courts of general jurisdiction.37 Even though the record does not disclose the manner in which jurisdiction was acquired, it will be presumed that jurisdiction existed.38 Courts exercising probate jurisdiction may be inferior courts, but their decrees are entitled to the same recognition as courts of record in so far as matters of probate and administration are concerned.89 86 Watkins' Land Mortgage Co. v. Mullen, 8 Kan. App. 705, 54 Pac. 921. 37 Lucas v. Todd, 28 Cal. 182, 185; Glendenning v. McNutt, 1 Ida. 592, 594. 38 Hahn v. Kelly, 34 Cal. 391, 407, 94 Am. Dec. 742. 39 Gager v. Henry, 5 Sawy. (U. S.) 237, Fed. Cas. No. 5172; Dewey v. Schreiber Imp. Co., 12 Ida. 280, 85 Pac. 921; Higgins v. Reed, 48 Kan. 272, 29 Pac. 389; It may be said as a general rule that a court exercising probate jurisdiction has only such powers as are granted to it by statute, and generally with reference to the proof of a will, the limit of the court's authority is to determine whether or not the will should be admitted and to whom letters testamentary or of administration with the will annexed should issue. For instance the superior court of California is a court of general jurisdiction and the same judge of such court may sit in matters of law, equity or probate; however, while sitting in probate he may exercise only probate jurisdiction which is purely statutory.40 Being a superior court it has power to hear and determine all questions of law and fact ancillary to a proper judgment of all matters before it;41 but this does not give the probate court power to determine disputes between heirs' and representatives of the deceased and third prsons.42 The trial of title to property in dispute between representatives of the estate and strangers is beyond the jurisdiction of the probate court;43 nor has such court the Stearns v. Wright, 51 N. H. 600; 40 Estate of Strong, 119 Cal. 663, 666, 51 Pac. 1078; Estate of Davis, 136 Cal. 590, 69 Pac. 412. 41 Estate of Burton, 93 Cal. 459, 463, 29 Pac. 36. See, also, Perea v. Barela, 6 N. M. 239, 27 Pac. 507. 42 Theller v. Such, 57 Cal. 447, 449. To the same effect, see Caron v. Old Reliable Gold M. Co., 12 N. M. 211, 6 Ann. Cas. 874, 78 Pac. 63; Estate of Singleton, 26 Nev. 106, 64 Pac. 513; Estate of Bolander, 38 Ore. 490, 63 Pac. 689; Estate of Gorkow, 28 Wash. 65, 68 Pac. 174. 43 Falke v. Terry, 32 Colo. 85, 75 Pac. 425; In re Wolford, 10 Kan. App. 283, 62 Pac. 731; Gjerstadengen v. Van Duzen, 7 N. D. 612, 66 Am. St. Rep. 679, 76 N. W. 233; Estate of Bolander, 38 Ore. 490, 63 Pac. 689; Stewart v. Lohr, 1 Wash. 341, 22 Am. St. Rep. 150, 25 Pac. 457. power to enforce a trust, that being within the domain of equity.** § 1300. Upon What Jurisdiction Depends: Foreign Wills. 45. The jurisdiction of a particular court in matters of probate or administration depends first upon the death of the party whose estate is to be administered, and second upon the domicile of the decedent and the situs of his property. In all petitions for letters testamentary or of administration, the jurisdictional facts must be shown.47 Some jurisdictions make the residence of the decedent at the time of his death, rather than the situation of his estate, the test of jurisdiction.48 The English rule, however, is that jurisdiction depends upon the fact that there is property of the decedent within the jurisdiction of the court which requires administration.49 Thus if a will disposes only of property situated without the realm, it is not entitled to probate in England.50 But the 44 Haverstick v. Trudel, 51 Cal. 431, 434. 45 See § 1186. 46 See § 1185. 47 Haynes v. Meeks, 10 Cal. 110, 118, 70 Am. Dec. 703; Estate of Harlan, 24 Cal. 182, 189, 85 Am. Dec. 58. 48 Holmes v. Oregon & C. R. R. Co., 7 Sawy. (U. S.) 380, 9 Fed. 229; Estate of Harlan, 24 Cal. 182, 189, 85 Am. Dec. 58; Estate of Griffith, 84 Cal. 107, 110, 23 Pac. 528, 24 Pac. 381; Estate of Latour, 140 Cal. 414, 425, 73 Pac. 1070, 74 Pac. 441; Ewing v. Mallison, 65 Kan. 484, 93 Am. St. Rep. 299, 70 Pac. 369. In Kansas the probate court of a particular county has no jurisdiction to appoint an administrator of the estate of a deceased resident of that state, or to prove his will or appoint an executor thereof unless the deceased was, at the time of his death, a resident of such particular county.-Ewing v. Mallison, 65 Kan. 484, 93 Am. St. Rep. 299, 70 Pac. 369. 49 In re Tucker, 3 Sw. & Tr. 585; In re Butson, L. R. 9 Ir. 21; Evans v. Burrell, 4 Sw. & Tr. 185. 50 In re Coode, L. R. 1 P. & D. 449. In the state of Washington the probate court has jurisdiction to grant administration upon a decedent's estate, although the only courts of England assume jurisdiction to administer estates situated within the realm although their decedent owners died domiciled abroad. The courts will recognize the controlling force of the law of the domicile of the decedent with respect to the granting of probate or administration of his estate and in matters connected therewith, but the courts of the domicile are not extended exclusive jurisdiction so as to prevent original jurisdiction being assumed by the courts of England.51 A similar rule prevails in some jurisdictions in the United States. 515 Where a foreign will is offered for probate the questions arise as to the sufficiency of the proof of the foreign probate and as to the residence or domicile of the decedent. But although one state may have jurisdiction by reason of the domicile of the testator, yet it does not follow that the courts of another state wherein property of the decedent is situated will admit such foreign will to probate for the purpose of ancillary administration. It will not, however, reject it, but will admit it to original probate, if warranted by the facts.52 In many jurisdictions in the United States the statutes prescribe the manner in which a will admitted to probate in a foreign jurisdiction may be locally received. Under property within the jurisdiction belonging to the decedent consists of real estate, and there are no creditors, and the estate is being administered in another state.-Hanford v. Davies, 1 Wash. 476, 25 Pac. 329. 51 Ewing v. Orr-Ewing, L. R. 10 App. Cas. 453, 502; Enohin v. Wylie, 10 H. L. Cas. 1, 19. See § 279. 51a Gordon's Case, 50 N. J. Eq. 397, 26 Atl. 268; Knight v. Hollings, 73 N. H. 495, 63 Atl. 38; Estate of Clayson, 26 Wash. 253, 66 Pac. 410. 52 Estate of Clark, 148 Cal. 108, 114, 113 Am. St. Rep. 197, 7 Ann. Cas. 306, 1 L. R. A. (N. S.) 996, 82 Pac. 760. See, also, Knight v. Hollings, 73 N. H. 495, 63 Atl. 38. such statutes probate generally may be had by filing certified copies of the will and of the probate proceedings.53 Where two courts of one state of co-equal authority are equally entitled to assume jurisdiction of the estate of a decedent, the court in which application is first made is the one in which exclusive jurisdiction should vest. 53 § 1301. How a Will Is Proved: Mental Capacity. A will must be offered for probate according to the statutory requirements of the jurisdiction wherein such offer is made, and such notice must be given as the law and rules of jurisdiction and the court require. The application for probate should state the jurisdictional facts. At the hearing the first points to be established are the death of the testator and the court's jurisdiction. If the will is not contested, the evidence is mainly directed to the proof of due execution. It must be shown, of course, that the decedent was, at the time of the execution of the will, of sufficient age and mental capacity to make the same. Testamentary capacity is a question of fact;54 but in the absence of evidence to the contrary, all persons are presumed to be of sound mind.55 Generally the proponent of the will establishes a prima facie case by slight evidence of mental capacity, although some authorities hold that the presumption that all persons are of sound mind is sufficient as evidence on this point.56 However, if 53 See § 281. For reference to statutes on this subject, see Synopses of Statutes, Appendix Pt. One, this volume. As to ancillary administration, see § 282. As to what law governs in cases of conflict, see §§ 265-296. 53a Dungan v. Superior Court, 149 Cal. 98, 117 Am. St. Rep. 119, 84 Pac. 767; Ewing v. Mallison, 65 Kan. 484, 93 Am. St. Rep. 299, 70 Pac. 369. 54 As to mental capacity necessary to make a valid will, see §§ 326-355. 55 See § 396. 56 See §§ 399, 400. |