IN GENERAL 1. Establishment-Always open-General and special terms--Statute -A probate court, which shall be a court of record having a seal, is established in each county. The office of the probate judge shall be kept open at the county seat at all reasonable hours, and the court shall always be open for the transaction of business. A general term of such court shall be held on the first Monday in each month, and special terms at such times and places in the county as the judge may deem advisable.1 2. Judges Term-Election-Appointment-The constitution provides that probate judges shall be residents of the county at the time of their election and reside therein during their continuance in office, and that they shall be elected by the voters of the county for the term of four years. Judges of probate need not be members of the bar or learned in the law.3 3. Election of judge-Bond-Statute-There shall be elected in each county a probate judge, who, before he enters upon the duties of his office, shall execute a bond to the county board in the penal sum of one thousand dollars, to be approved by said board, conditioned for the faithful discharge of his duties, and for the faithful application of all moneys and effects that may come into his hands in the execution of the duties of his office, which bond, with his oath of office, shall be filed with the register of deeds. A judge elected upon a vacancy holds for the full constitutional term and not merely for the unexpired portion of his predecessor's term. The election of a judge provided for by the last clause of section 10 of article 6 of the constitution is one which becomes necessary by reason of the happening of a vacancy. The clause does. not refer to or control elections of judges which come on in the ordinary. course of electing judges and which would have been held if no vacancy had occurred." 4. Clerk of court-Appointment-Bond-Statute-Every probate judge may appoint a clerk, who shall perform the duties assigned him by law or such judge. Such appointment shall be in writing, signed by the judge, and filed in the office of the clerk of the district court of the county in which the same is made. Before entering upon the duties of his office, such clerk shall execute a bond to the county board, with 1 G. S. 1913, § 7200. See Const. art. 6 § 7. 2 Const. art. 6 § 7. See, as to appointment of judge by county board in newly organized county, State v. Falk, 89 Minn. 269, 274, 94 N. W. 879. 3 Davis v. Hudson, 29 Minn. 27, 36, 11 N. W. 136; Rong v. Haller, 106 Minn. 454, 119 Ń. W. 405. 4 G. S. 1913, § 7201. 5 Crowell v. Lambert, 9 Minn. 283 (267); State v. Black, 22 Minn. 336. 6 State v. Black, 22 Minn. 336. sufficient sureties to be approved by said board, in the penal sum of five hundred dollars, conditioned for the faithful discharge of his duties. Said bond, with his oath, shall be filed and recorded in the office of the register of deeds and an action may be maintained on said bond by any party aggrieved by the violation of the conditions thereof." 5. Compensation of judges, clerks and employees-The compensation of judges, clerks and employees of probate courts is regulated by statute and depends upon the population of the county. 8 6. Courts of record-Probate courts are courts of record." 7. Superior courts-Records import verity-Probate courts are courts of superior jurisdiction and their records import absolute verity and can be impeached only in a direct proceeding.10 While probate courts are regarded as superior courts so far as the effect of their records, orders, judgments and decrees are concerned, yet their jurisdiction is limited and to a certain extent they are subordinate to the district courts. No regular adversary action can be maintained in them. There is no right to trial by jury of any issue therein. They are subject to an ancillary jurisdiction in the district courts, and their judgments may be set aside by the district courts for fraud or mistake.11 8. Orders, judgments and decrees not subject to collateral attack for error or irregularity-Probate courts are superior courts and their orders, judgments and decrees are not subject to collateral attack for error or irregularity.12 This rule ought to be rigorously enforced for the practical reasons pointed out elsewhere.13 An exception to the general rule against collateral attack for error or irregularity is made in the case of sales of real property under license from the probate court.14 A judgment of the probate court has the same force and effect as a judgment of the district court.15 7 G. S. 1913, § 7209. 8 See G. S. 1913, §§ 7215-7226; Laws 1915, cc. 63, 136; Laws 1917, cc. 128, 328, 434; Laws 1919, cc. 57, 149, 224, 293, 302, 304, 500; Laws 1921, cc. 164, 315, 351. 9 Const. art. 6 § 7; Dayton v. Mintzer, 22 Minn. 393; Davis v. Hudson, 29 Minn. 27, 35, 11 N. W. 136; Kurtz v. St. Paul & Duluth R. Co., 61 Minn. 18, 22, 63 N. W. 1; McNamara v. Casserly, 61 Minn. 335, 341, 63 N. W. SSO. 10 Dayton v. Mintzer, 22 Minn. 393; Davis v. Hudson, 29 Minn. 27, 11 N. W. 136; Curran v. Kuby, 37 Minn. 330, 33 N. W. 907; Logenfiel v. Richter, 60 Minn. 49, 61 N. W. 826: Kurtz v. St. Paul & Duluth R. Co., 61 Minn. 18, 22, 63 N. W. 1; Fridley v. Farmers & Mechanics Sav ings Bank, 136 Minn. 333, 162 N. W. 454; Amundson v. Hanson (Minn.) 185 N. W. 252. 11 See §§ 24, 29, 1082. 1.2 Dayton v. Mintzer, 22 Minn. 393; Simpson v. Cook, 24 Minn. 180; State v. Probate Court, 40 Minn. 296, 41 N. W. 1033; O'Brien v. Larson, 71 Minn. 371, 74 N. W. 148; Aho v. Republic Iron & Steel Co., 104 Minn. 322, 325, 116 N. W. 590; Pierce v. Maetzold, 126 Minn. 445, 148 N. W. 302; Amundson v. Hanson (Minn.) 185 N. W. 252. See title "Collateral Attack" in index and Dunnell, Minn. Digest and Supplements, § 5145. 13 See $34. 14 See § 998. 15 Schmitz v. Martin, 149 Minn. 386, 183 N. W. 978. 9. Duty of judge to deliver books to successor-Statute-Whenever the term of office of any probate judge expires he shall deliver over to his successor in office all books and papers in his possession relating to his office, and upon failure so to do within five days after demand by his successor he shall be guilty of a gross misdemeanor.10 10. What books of record to be kept-Statute-The court shall keep the following books of record, each of which shall be properly indexed: 1. A register, in which shall be entered minutes of all proceedings of the court; those pertaining to the estate of a deceased person under the name of the decedent; those pertaining to guardians under the name of the ward; those pertaining to an insane person under his name; with a notation of all papers filed in each case and the date of filing; also a reference to the volume and page of other books wherein any record shall have been made in such matter. 2. A record of wills, in which shall be recorded all wills admitted to probate, with the certificate of the probate thereof. 3. A record of bonds, in which shall be recorded all bonds filed and approved by such court. 4. A record of letters, in which shall be recorded all letters testamentary, or of administration or guardianship, issued by such court. 5. A record of claims, in which shall be entered, under the title of the estate, all claims filed in favor of or against such estate; it shall contain the number of the claim, the date of filing, name of claimant, nature and amount of claim, amounts allowed and disallowed, and the date of such allowance or disallowance; it shall also state the nature and amount of any offset, the amount thereof allowed and disallowed, with the final bal ance. 6. A record of orders, in which shall be recorded all orders, decrees, and judgments made by the court, except orders allowing or disallowing claims, orders directing the publication of notices, and interlocutory and non-appealable orders. The records of the probate court are not within the recording statutes.18 17 11. Entries in records-Files-Evidence-In making entries in the records it is not necessary to use the seal of the court.19 Entries may be made by the clerk under the direction of the judge. They should be made promptly, but a delay, even of years, is not fatal, at least if made during the term of the judge.20 Letters of guardianship should be recorded in the "record of letters," and such record is competent evidence of the letters without the production of the originals and without account 16 G. S. 1913, § 7202. 17 G. S. 1913, § 7203. 18 Butterwick v. Fuller & Johnson Mfg. Co., 140 Minn. 327, 168 N. W. 18. 19 Tidd v. Rines, 26 Minn, 201, 207, 2 N. W. 497. 20 Davis v. Hudson, 29 Minn. 27, 38, 11 N. W. 136. ing for their absence.21 An order granting or denying the application of a person under guardianship to be restored to capacity should be recorded in the "record of orders." Interlocutory orders, within the meaning of G. S. 1913, § 7203(6), include orders appointing representatives, orders for hearing on intermediate petitions, and the like.22 Files are on the same footing as entries in the minutes.23 12. Copies of records and papers on file-Statute-The probate court shall furnish a certified copy of any paper on file or of record in such court, upon payment therefor at the rate of ten cents per folio, and twenty-five cents for each certificate. The clerk may authenticate and certify copies of the records.25 13. What disqualifies judge to act-Statute-Every probate judge shall be disqualified from acting as such in any matter in which he, or his wife, or any of his or her kin nearer than first cousins, shall be interested as heir, executor, administrator, guardian, devisee, legatee, or creditor; in any matter involving the probate or interpretation of any will drawn or witnessed by him; in the determination of any question in which he shall be a necessary witness; and in any matter involving the property right of any person in respect to which he is or has been the attorney or counsel of such party.20 14. Who to act when judge disqualified or absent-Statute-Whenever so disqualified any probate judge may, and when it is made to appear by the verified petition of any person interested or his attorney that such ground of disqualification exists he shall, make an entry in his records, reciting such grounds, and by order appoint the probate judge of an adjoining county to hear, try, and determine the matters as to which such disqualification relates. Whenever, by reason of necessary absence, any probate judge shall be unable to act, he shall request, in writing, the probate judge of an adjoining county to act in his place in all matters arising during such absence. And the judge so appointed or requested shall attend for that purpose at such times as may be necessary. The expenses of the judge so acting shall be paid by the county in which he shall be so called to act.27 15. When judge becomes insane-Statute-Whenever the verified petition of five voters of any county is presented to a judge of the district court of such county, stating that the probate judge of such county is insane, such judge shall examine into such alleged insanity in the manner provided by law for like examinations by probate judges. If upon 21 Davis v. Hudson, 29 Minn. 27, 38, 11 N. W. 136. 22 State v. Probate Court, 73 Minn. 58, 60, 85 N. W. 917. 23 Dayton v. Mintzer, 22 Minn. 393. 24 G. S. 1913, § 7212. See G. S. 1913, § 1087. 25 Fitzpatrick v. Simonson Bros. Mfg. Co., 86 Minn. 140, 148, 90 N. W. 378. 26 G. S. 1913, § 7206. 27 G. S. 1913, § 7207. the examination such probate judge is found to be insane or incapacitated to act by reason of mental disability, the district judge shall certify such findings to the Governor, who shall thereupon declare the office of such probate judge vacant, and fill the same by appointment.28 16. Judge or clerk not to act as counsel or attorney-Statute-No judge or clerk of any probate court shall be counsel or attorney in any action or proceeding for or against any legatee, heir, creditor, executor, administrator, guardian or ward over whom, or whose estate or accounts, he has jurisdiction by law, nor shall either of them give counsel or advice or draw or prepare any paper relating to any estate which is or may be brought before such court except citations, orders, decrees, executions, warrants, or subpoenas issuing out of such court. Nor shall any such clerk, or the law partner of any probate judge or clerk, appear or practice as attorney in any matter or proceeding before such probate court. Nor shall any probate judge keep or hold his official office with any practicing attorney.29 17. Time within which decisions must be filed-Statute-The decision of any issue of law or fact shall be in writing, and filed in said court within ninety days after submission unless prevented by sickness or unavoidable casualty. This provision shall be construed as mandatory, and the county auditor shall not sign or issue a warrant for the salary of the probate judge, or any instalment thereof, unless the voucher for such warrant is accompanied by an affidavit of the judge that all matters submitted to him for decision ninety days or more prior to the filing of such affidavit have been decided as herein required, unless a decision has been prevented by sickness or casualty, in which case the reasons for the delay shall be specifically stated, and the making of a false affidavit shall be sufficient cause for complaint to the Governor.30 18. Definitions-Representatives-Minors-Statute-The word "representative," when used in these laws with reference to probate courts and proceedings therein, shall be construed as including executors, administrators, special administrators, administrators with the will annexed, administrators de bonis non, and guardians. The word "minor" means a male under the age of twenty-one years, or a female under the age of eighteen years.31 Females become of age when they are eighteen years old.32 2 G. S. 1913, § 7208. 29 G. S. 1913, § 7210. 30 G. S. 1913, § 7213. 31 G. S. 1913, § 7214. See § 630. 32 Cogel v. Ralph, 24 Minn. 194; National Biscuit Co. v. Nolan, 138 Fed 6; Ex parte Petterson, 166 Fed. 536. |