waives the right to further compensation under the contract. If no legacy at all is made, the claimant may recover the reasonable value of the consideration rendered by him.*

Sec. 1000. BY WHAT LAW A WILL IS TO BE GOVERNED.-It is the general rule in relation to wills of real property that all questions as to the capacity of the testator, his power to dispose of the property and the formalities of execution, are governed by the law of the place where the land lies; that is, in technical phrase, wills of realty are governed by the lex rei sitæ.t

This rule means that though the testator executes his will with the formalities required where he is domiciled, but not in accordance with the formalities required in the State where the land lies, it will be invalid.‡

The general rule in relation to wills of personal property is, that they are to be governed by the law of the testator's domicile; that is, technically, the lex domicilii.§

In some States, the rule as regards realty is changed

*Hudson v. Hudson, 87 Ga. 678; Wallace v. Long, 105 Ind. 522; Porter v. Dunn, 131 N. Y. 314.

†Pepper's Est., 148 Pa. St. 5; Company v. Windsor, 148 Ind. 682; De Vaughn v. Hutchinson, 165 U. S. 566; Bailey v. Bailey, 8 Ohio 239; Am. & Eng. Encyc. of Law, Vol. 3, Pg. 630.

Knight v. Wheedon, 104 Ga. 309; Nelson v. Potter, N. J. L. 324; Jones v. Robinson, 17 O. S. 171.

§ Manuel v. Manuel, 13 O. S. 458; Jenvins v. Company, 53 N. J. Eq. 194; Yore v. Cook, 67 Ill. App. 586.

by statute so far as the formalities of execution are concerned, by making the law of the place where the will is executed control.

Under these statutes a will valid where executed is made sufficient to pass title to land anywhere.*

*Green v. Alden, 92 Me. 177.

CHAPTER IX.

PROBATE AND CONTEST OF WILLS.

Sec. 1001. WHAT IS MEANT BY PROBATE. -Probate is defined "as the solemn judicial act of an officer authorized by law adjudging and decreeing that the instrument offered to be proved or recorded as the last will and testament of deceased is such last will and testament. The word 'probate' is often so used as to include the offering of proof before such authorized officer, and even the entire judicial proceeding which results in the admission of the will to probate."*

Under modern law the will is of no effect until it has been probated, that is, proved and allowed as required by law by the appropriate tribunal provided for the purpose. At the Common Law, a will of realty was not probated, and was in itself sufficient to transfer title, and in cases of dispute it was subject of proof in ejectment or partition the same as a deed.†

*Page on Wills, Sec. 312; Knox v. Paull, 95 Ala. 505; Wall v. Wall, 123 Pa. St. 545; Myers v. Smith, 50 Kan. 1.

Probate. "Legal proof. The proceeding by which a will is proved to be that of the testator and legally declared and executed. The decree determining that a will is legal and proved. A certified copy of such. A will delivered to the executor. The jurisdiction to prove wills." English's Law Dictionary.

+Floyd v. Herring, 64 N. Car. 409; Knox. v. Paull, 95 Ala. 505; Luther v. Luther, 122 Ill. 558; Woodbridge v. Banning, 14 O. S. 328.

See. 1002. THE METHOD FOLLOWED IN PROBATING WILLS.-The methods or modes of proving testaments at the Common Law were either the solemn form, which was done by citing all the persons interested to appear and the examination of the witnesses by the court and those who might dispute the validity of the will; or the common form, which was done ex parte by the mere presentation of the instrument by the executor upon his own oath before the probating tribunal. In the latter case the proof was not final and any interested party could by application have a re-propounding and formal proof, while in the former case the probate could only be attacked for fraud or collusion.*

*

In the United States there is no distinction between wills of realty or personalty in regard to probate, and the manner of probating the instrument is fixed by statute, which in the first instance is, generally, the common form, modified as regards notice to adverse parties and their rights to be present and examine witnesses offered in proof of the will, and in the second instance, the fur

*"English probate is obtained by the executor, and is either in common form, which is only upon the executor's own oath before the ordinary or his surrogate, or per testes, in more solemn form of law in case the validity of the will be disputed. When the will is so proved, the original must be deposited in the registry of the court; and a copy thereof on parchment is made out under its seal, and delivered to the executors, together with a certificate of its having been proved-all which together is usually styled the probate." 2 Steph. Com. 202; Hubbard v. Hubbard, 7 Oreg. 42; Mears v. Mears, 15 O. S. 90.

ther right of any party interested to contest such proven or probated will in another proceeding, either in the same court or in another court by the statutory process of a suit which is in the nature of an appeal, though an independent action.*

Sec. 1008. THE COURTS HAVING PROBATE JURISDICTION.-In nearly all of the United States the probating of wills is committed to some special court, established for that purpose, and variously styled, probate courts, orphan's courts, and surrogate courts. Though in some States no special court is provided.

These courts while usually courts of record, are yet of limited jurisdiction, but within their jurisdiction they are usually given exclusive power, and their action is as a rule conclusive until set aside by an appellate court, under the mode provided by statute. Their probate proceedings are not usually to be reviewed by the Common Law process of certiorari, or writ of error, but by a distinct action provided by statute which is said to be in the nature of an appeal.‡

Where probate tribunals are established, the chancery or equity courts have no implied jurisdiction over the probating of wills; nor can they decree the probate of

*Haynes v. Haynes, 88 O. S. 598; Corly v. Probate Judge, 96 Mich. 11; Clark v. Ellis, Or. 128; Larson's Est., 71 Minn. 250.

†Israel v. Wolf, 100 Ga. 339; Oakley v. Taylor, 64 Fed. Rep. 245.

Bradford v. Andrews, 20 O. S. 208; Rothrock v. Rothrock, 22 Or. 551.