situated, although it may not be the place of the testator's domicile.35 Yet it has been held that even though a will may have been admitted to probate in the jurisdiction wherein the land devised is located, that thereafter, in order to have probate of the will in the domicile of the testator, the original will and not an authenticated copy of the same, must be presented.s Although a will may be admitted to probate in the domicile of the testator, yet if it disposes of real property situated in another jurisdiction, probate in the court of the situs is necessary. 87 This is generally done by filing certified copies of the original will and of the proof thereof and the proceedings thereunder, and upon which ancillary letters of administration issue.38 It must be remembered that each state has the power to and does regulate all matters pertaining to the probate of wills and the administration of the estates of decedents. State courts have no extraterritorial jurisdiction. No proceedings can be had in any state unless sanctioned by its laws. For these reasons the particular laws of each jurisdiction wherein any of the property of the decedent may be located, should be consulted. Rep. 464, 58 N. Y. Supp. 589; Converse v. Starr, 23 Ohio St. 491. 35 Wells v. Wells, 35 Miss. 638; Still v. Corporation of Woodville, 38 Miss. 646. 36 Bate v. Incisa, 59 Miss. 513; Stark v. Parker, 56 N. H. 481; Wallace v. Wallace, 3 N. J. Eq. 616; In re Alexander's Will, Tuck. (N. Y.) 114. 37 Cabanne v. Skinker, 56 Mo. 357; Van Syckel v. Beam, 110 Mo. § 1186. No Jurisdiction to Administer Estates of Living Persons. Courts exercising probate jurisdiction administer the estates of decedents; death is a requisite to jurisdiction. No will becomes effective until after the death of the maker, and until such time no court has jurisdiction to entertain a petition for the probate of his will. Proceedings to the contrary are void.39 In fact the jurisdiction of the court is limited in all cases to the administration of the estates of deceased persons, and continued absence of a person or the belief that he is dead does not give the court jurisdiction if in fact he be alive. And if a court acts without jurisdiction, its proceedings are void and may be collaterally attacked. This is the weight of authority, or rather it may better be said to be the almost universal rule.40 89 Thomas v. People, 107 Ill. 517, 47 Am. Rep. 458; Moore v. Tanner, 5 T. B. Mon. (21 Ky.) 42, 27 Am. Dec. 35; Roderigas v. East River Sav. Inst., 76 N. Y. 316, 32 Am. Rep. 309; Devlin v. Com., 101 Pa. 273, 47 Am. Rep. 710. In Michigan, Pub. Acts 1883, No. 25, a statute was enacted providing for the probate of a will during the lifetime of a testator, but this statute was held to be inoperative. See Lloyd v. Wayne Circuit Judge, 56 Mich. 236, 56 Am. Rep. 378, 23 N. W. 28. 40 Scott v. McNeal, 154 U. S. 34, 47-49, 38 L Ed. 896, 14 Sup. Ct. 1108; Hamilton v. Brown, 161 U. S. 256, 267, 40 L. Ed. 691, 16 Sup. Ct. 585; Stevenson v. Superior Court, 62 Cal, 62; Burns v. Van Loan, 29 La. Ann. 560, 564; Wales v. Willard, 2 Mass. 120; Morgan v. Dodge, 44 N. H. 255, 82 Am. Dec. 213; Springer v. Shavender, 116 N. C. 16; Springer v. Shavender, 118 N. C. 12, 44, 47 Am. St. Rep. 791, 33 L. R. A. 772, 21 S. E. 397; Melia v. Simmons, 45 Wis. 334, 338, 30 Am. Rep. 746. In Carr v. Brown, 20 R. I. 215, 220, 78 Am. St. Rep. 855, 38 L. R. A. 294, 38 Atl. 9, it was held that a law providing for the distribution of the estate of one not heard from for seven years, as dead, was unconstitutional. Contra: Roderigas v. East River Sav. Inst., 63 N. Y. 460, 20 Am. Rep. 555, criticised in Lavin v. The Emigrant Industrial Savings Bank, 1 Fed. 641, 18 Blatchf. 1, being the § 1187. What May Be Probated. Only those instruments in writing or oral declarations which in fact constitute the last will and testament of a decedent, are entitled to be admitted to probate as such. This involves the question as to what constitutes a will. A will is the lawful intent of a competent person, legally expressed, regarding his estate and effective after his death. It need not necessarily dispose of property; an instrument duly executed which merely appoints an executor is a will.41 Wills may be written or oral, and written wills may be joint, mutual or reciprocal, conditional or contingent, or duplicate, and also we have the classification which may be termed Louisiana testaments. They may be in many forms, and may consist of many sheets. Writings in the form of deeds, notes, letters or assignments may in fact be wills, and should be admitted to probate as such. These matters have herein before been fully covered.42 It is for the court, however, to decide what is or is not a will, and anything which comes under the general classification should at least be presented to the court for a ruling, and this should include any papers which might be construed as a revocation of a former will, either in whole or in part. § 1188. Who Should Offer the Will for Probate. In matters of probate or administration, those not interested under the will or entitled to succeed to a portion of the decedent's property in the event of intestacy, have federal court for New York, as having no support elsewhere among English or American decisions. Compare, also, Plume v. Howard. Sav. Inst., 46 N. J. L. 211. 41 See § 22. As to the nature of wills generally, see §§ 22-30. 42 See Classification and Form of Wills, §§ 32-68. no standing in court. A will should be presented for probate by the executor named therein.43 In most jurisdictions it is a criminal offense for any one to secrete or destroy the last will and testament of a decedent for the purpose of preventing its being admitted to probate. In some jurisdictions the executor is subject to penalties if he does not offer the will for probate.** One who is nominated in a will as the executor thereof, if he be competent to act as such, can not be deprived of the right to administer the estate of the testator except he renounce his right or refuse to appear when cited to prove the will.45 An executor named in a will, however, may die prior to the death of the testator, or may be unable or decline to act, and he can not be compelled to accept the trust.46 In such cases any one beneficially inter 48 Wankford V. Wankford, 1 Salk. 299, 308; Smith v. Harrison, 2 Heisk. (49 Tenn.) 230; Ward v. Brown, 53 W. Va. 227, 44 S. E. 488. In some jurisdictions it is provided by statute that the custodian of a will shall offer it for probate, although this does not prevent the executor named therein from making the offer. See Matter of Storey, 120 Ill. 244, 11 N. E. 209; Bent v. Thompson, 5 N. M. 408, 23 Pac. 234. 44 Barber v. Eno, 2 Root (Conn.) 150; Moore v. Smith, 5 Greenl. (5 Me.) 490; Matter of Storey, 120 Ill. 244, 11 N. E. 209; Richardson v. Fletcher, 74 Vt. 417, 52 Atl. 1064; Fletcher v. Fletcher, 74 Vt. 430, 52 Atl. 1068. Under § 7080, Rev. Stats. 1908 of Colorado, the custodian of a will who secretes or wilfully holds it after the testator's death is liable to fine or imprisonment.-Walch v. Orrell, 53 Colo. 361, 127 Pac. 141. 45 Bowman's Appeal, 62 Pa. 166. An appeal by one named as a joint executor in the will, from the order admitting the will to probate, is a constructive renunciation of the trust.-Briggs v. Probate Court of Westerly, 23 R. I. 125, 50 Atl. 335. 46 Ralston's Estate, 158 Pa. St. 645, 28 Atl. 139. See, also, Cable v. Cable, 76 Iowa 163, 40 N. W. 700. An agreement by one named as an executor to renounce his right for a consideration, is void as against public policy.-Staunton v. Parker, 19 Hun (N. Y.) 55. To the same effect, see Ellicott v. Chamberlin, 38 N. J. Eq. 604, 48 Am. ested under the will or in the estate of the decedent may apply to the proper court for the admission of the will to probate, and letters of administration with the will annexed will be granted. When the will is presented by some one other than the one named therein as executor, the executor should be cited to prove the will, or to accept the trust or refuse the same; but good cause for neglecting to do so may be shown as, for instance, that the one named as executor is dead.48 § 1189. Length of Time After Death of Testator That Will Should Be Offered for Probate. With regard to nuncupative wills, it is generally provided by statute in those jurisdictions where such wills are sanctioned that such a will can not be offered for probate until a stipulated time after the death of the testator and after notice to the heirs or next of kin of the decedent, nor can such wills be offered later than a stipulated time unless they were theretofore reduced to writing. 49 As to written wills, the rule of the common law prescribed no limitation; such wills might be offered for pró Rep. 327, but compare Bassett v. 47 Finch v. Finch, 14 Ga. 362; Matter of Storey, 120 Ill. 244, 11 N. E. 209; Wells v. Wells, 4 T. B. Mon. (20 Ky.) 153, 16 Am. Dec. 150; Keniston v. Adams, 80 Me. 290, 14 Atl. 203; Foster v. Foster, 7 Paige (N. Y.) 48; Elwell v. Universalist General Convention, 76 Tex. 514, 13 S. W. 552; Hanley v. Kraftczyk, 119 Wis. 352, 96 N. W, 820. 48 Finch v. Finch, 14 Ga. 362. By the statute of 21 Hen. VIII, ch. 5, § 8, the ordinary could cite the one named in the will as executor to prove or refuse the testament, and if he failed to appear he was punishable for contempt. By the statute of 55 Geo. III, ch. 184, § 37, if the executor administered the estate, he was liable to a penalty and a per cent of the duty if he neglected to take out probate within six months. 49 See synopses of statutes of |