PROBATE JURISDICTION.

§ 1180. Necessity of administration of estates.

§ 1181. Development of administration of estates in England. § 1182. The common law distinguished between realty and personalty for payment of debts: Changed by statute. § 1183. Probate.originally affected personal estate only, but now both are subject to probate jurisdiction.

§ 1184. What courts now exercise probate jurisdiction.

§ 1185. Jurisdiction of court as affected by domicile of testator and situs of real property.

§ 1186. No jurisdiction to administer estates of living persons. § 1187. What may be probated.

§ 1188. Who should offer the will for probate.

§ 1189.

Length of time after death of testator that will should be offered for probate.

§ 1190. Admissibility of will to probate does not involve the construction of its terms.

§ 1180. Necessity of Administration of Estates.

A will is a creature of statute, its effect depending upon compliance with legislative enactment and avoidance of dispositions prohibited by public policy or by law. The natural disposition of a man's estate after his death would be to those most closely connected with the decedent by ties of blood and family. The law of wills allows a man to dispose of his property to strangers. We may say that universally it is provided in the various jurisdictions that if one dies intestate, the property owned by him at the time of his death passes according to the rules of succession or statute of distribution in effect in the jurisdiction in question. The purpose of

III Com. on Wills-1

(1831)

such rules or statutes is to pass the property of a decedent to those who, according to the natural claims of love, affection and family are most justly entitled to receive. the benefit. When a decedent leaves a will, his property is distributed according to his expressed intentions. In all cases, whether one die testate or intestate, his property, except such as by law is exempt, may be resorted to in order to satisfy the claims of creditors. The necessity of determining who are entitled to the estate of an intestate decedent, or the necessity for the proper construction and determination of the dispositions of the will of a testate decedent, and the adjustment and satisfaction of claims against the estate, as well as the collection of debts due to the decedent, and the conservation of the property, make administration imperative.

Of course, there are some cases where the heirs or beneficiaries under a will may, by agreement and division among themselves, settle all claims and divide the estate; but where property is involved which requires

1 Waterhouse v. Churchill, 30 Colo. 415, 70 Pac. 678; Johnson v. Hall, 101 Ga. 687, 29 S. E. 37; Gwinn v. Melvin, 9 Ida. 202, 108 Am. St. Rep. 119, 2 Ann. Cas. 770, 72 Pac. 961; Brown v. Baxter, 77 Kan. 97, 94 Pac. 155, 574; Letts v. Letts, 73 Mich, 138, 41 N. W. 99; Granger v. Harriman, 89 Minn. 303, 94 N. W. 869; Richardson v. Cole, 160 Mo. 372, 83 Am. St. Rep. 479, 61 S. W. 182; Stevens v. Meserve, 73 N. H. 293, 61 Atl. 420; Wright v. Smith, 19 Nev. 143, 7 Pac. 365; Herrington v. Lowman, 22 App. Div. (N. Y.) 266, 47 N. Y. Supp.

863; Matter of Field, 33 Wash, 63, 73 Pac. 768; Flood v. Pilgrim, 32 Wis. 376.

In State ex rel. Speckart v. Superior Court, 48 Wash. 141, 92 Pac. 942, it was held that the object of administration is the collection of assets, payment of debts, and distribution of the residue; and where the debts have been paid or are barred, the estate has vested in those legally entitled to it, and the testator has been dead for thirteen years, no court should assume jurisdiction for the sole and only purpose of making a distribution

a transfer of record in order to complete the chain of title and prove ownership, administration of the estate and a proper distribution thereof must be had. And even though there be no debts and but a single distributee, yet the probate court has jurisdiction of the estate and may grant administration thereof."

If a statute of the jurisdiction requires a will to be probated and imposes a penalty if such is not done, administration is necessary; and any settlement out of court which is challenged for fraud, properly demands an administration of the estate. Where there are debts owing to the decedent, ordinarily they can not be collected unless an administration of the estate is had, since heirs at law or beneficiaries under the will can not in their own names prosecute suits to recover debts due the decedent, but such actions can be maintained only by the administrator or personal representative.®

§ 1181. Development of Administration of Estates in England.

The ancient rule was that in the event of a man dying intestate, the King as parens patriae, through his ministers, administered the goods of the decedent in order to conserve the same, meet the expenses of burial, pay the decedent's debts, and distribute the remainder to the

thereof among those in whom the estate has already vested.

2 A will, although not probated, is sufficient to confer on a devisee such an interest in property devised to him as to be the foundation for a suit in equity based on a claim to the property.-Pettit v. Black, 13 Neb. 142, 12 N. W. 841; Olleman v. Kelgore, 52 Iowa 38, 2 N. W. 612.

8 Johnson's Admr. v. Longmire, 39 Ala. 143.

4 Seery v. Murray, 107 Iowa 384, 77 N. W. 1058.

5 Bruning v. Golden, 159 Ind. 199, 64 N. E. 657; Seery v. Murray, 107 Iowa 384, 77 N. W. 1058.

6 Leamon v. McCubbin, 82 Ill. 263; McChord v. Fisher's Heirs, 13 B. Mon. (52 Ky.) 194; Ketchum v. Dew, 7 Coldw. (47 Tenn.) 532.

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wife and children, or blood relations, of the one so dying. Later, the Crown invested the prelates of the church with this prerogative, the ecclesiastics being chosen with the idea that spiritual men were of better conscience than laymen, and that they had more knowledge of those things which would conduce to the benefit of the soul of the deceased. The goods of an intestate were therefore given by the Crown to the ordinary. At first the ordinary was accountable only to God for the conduct of the trust, but by the statute of Westminster 2,8 the ordinary was required to pay the debts of the decedent, and by the statute of 31 Edward III, ch. 11, was required to deputize the nearest and most lawful of the friends of the deceased to administer his goods, such administrators being put on the same footing, with regard to the settlement of claims and to accounting, as executors appointed by will. Later, by the statute of 21 Henry VIII, ch. 5, the ecclesiastical judge was permitted to grant administration to either the widow of the decedent, or to the next of kin, or to both, at his discretion. And by the Statute of Distribution of 22 and 23 Charles II, ch. 10 (A. D. 1670), it was enacted that all the surplus of the estate (personalty) should go to the wife and children, or to the next of kin, of the decedent.

Although it is not well settled whether the probate of wills was originally a matter of ecclesiastical jurisdiction, it is certain, however, that they subsequently assumed such control.10 Later, by the Executor's Act,

Contra: Cooper v. Davison, 86

Ala. 367, 5 So. 650; Wright v. Robinson, 94 Ala. 479, 10 So. 319; McGhee v. Alexander, 104 Ala. 116, 16 So. 148.

72 Bl. Com. *494.

8 Statute of 13 Edw. I, ch. 19.

92 Bl. Com. **495, 496.

10 Bacon, Abr., tit. Exec. & Admrs., E.; Williams Exrs. (3d Am. ed.) *237.

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1830,11 the residue of the testator's estate undisposed of by his will remained in the hands of the executor as trustee only, for the benefit of those entitled to succeed to the testator's estate under the Statute of Distribution, the executor taking no beneficial interest in such property unless the will so provided.

§ 1182. The Common Law Distinguished Between Realty and Personalty for Payment of Debts: Changed by

Statute.

The rule of the early common law distinguished between realty and personalty. The heir of a decedent took title by descent rather than by purchase, although the same property might have been given to him by will, the reason being that it was deemed more convenient that the property should be assets in the hands of the heir. Realty descended direct to the heir, while personalty passed to the personal representatives of the deceased for the purposes of administration and the satisfaction of the decedent's debts. Realty in the hands of the heir was liable only for specialty debts or those of record, not simple contract debts of the decedent. This was subsequently changed by statute until the general rule now is that all the estate of a decedent, whether realty or personalty, is deemed assets for the payment of his debts of whatever character.12 The personal estate, however, is primarily liable for the satisfaction of all debts, and the order in which the property may be resorted to for the payment of debts is well established.18

11 Stat. of 11 Geo. IV and

1 Wm. IV, ch. 40.

12 See §§ 782, 783.

13 See §§ 784, 785, where this matter is fully treated.