JURISDICTION

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19. In general-The constitution of the state defines the jurisdiction of probate courts as follows: "A probate court shall have jurisdiction over the estates of deceased persons and persons under guardianship, but no other jurisdiction, except as prescribed by this constitution." 88 There is a marked distinction between the jurisdiction and powers of our probate courts under the constitutional provision giving them jurisdiction over the estates of deceased persons and that of similar courts of some other states, which derive all their jurisdiction and powers from statute.* It is not a common-law or statutory jurisdiction.35 It is expressly limited and restricted by the constitution to the estates of deceased persons and persons under guardianship. The jurisdiction of probate courts is general and as respects the subjects committed to them they have all the powers that any court has.37 Their powers are not only general but plenary in cases where they are authorized to act. They are not courts of limited jurisdiction in the ordinary sense of that term. Their jurisdiction is to be liberally construed.38 They have implied power to do whatever is reasonably necessary to carry out the powers expressly conferred. They may exercise such powers as are conferred upon them, though their exercise involves an incidental consideration of the same issues that may be considered and decided by other courts.40 They have no general equitable or common-law jurisdiction in the exercise of which

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33 Const. art. 6 § 7.

84 Culver v. Hardenbergh, 37 Minn. 225, 234, 33 N. W. 792; Fiske v. Lawton, 124 Minn. 85, 91, 144 N. W. 455; Woerner, Am. Law of Adm. (2 ed.) §§ 141-144; 11 Cyc. 791.

35 State v. Probate Court, 84 Minn. 289, 292, 87 N. W. 783.

36 Peterson v. Vanderburgh, 77 Minn. 218, 221, 79 N. W. 828.

87 Davis v. Hudson, 29 Minn. 27, 35, 11 N. W. 136; McNamara v. Casserly, 61 Minn. 335, 341, 63 N. W. 880; Buntin v. Root, 66 Minn. 454, 457, 69 N. W. 330; Harrison v. Harrison, 67 Minn. 520, 521, 70 N. W. 802; Fiske v. Lawton, 124 Minn. 85, 91, 144 N. W. 455; State v. Probate Court, 133 Minn. 124, 155 N. W. 906, 158 N. W. 234; State v. Probate Court, 140 Minn. 342, 168 N. W. 14; Woerner, Am. Law of Adm. (2 ed.) § 144. 38 Harrison v. Harrison, 67 Minn. 520, 70 N. W. 802; Fitzpatrick v. Simonson Bros. Mfg. Co., 86 Minn. 140, 146, 90

N. W. 378; Fiske v. Lawton, 124 Minn.
85, 144 N. W. 455; State v. Probate
Court, 133 Minn. 124, 155 N. W. 906, 158
N. W. 234; State v. Probate Court, 140
Minn. 342, 168 N. W. 14.

39 State v. Ueland, 30 Minn. 277, 15 N. W. 245; Culver v. Hardenbergh, 37 Minn. 225, 233, 33 N. W. 792; Mousseau v. Mousseau, 40 Minn. 236, 41 N. W. 977; State v. Probate Court, 66 Minn. 246, 68 N. W. 1063; Levi v. Longini, 82 Minn. 324, 327, 84 N. W. 1017, 86 N. W. 333; Betcher v. Betcher, 83 Minn. 215, 218, 86 N. W. 1; Wellner v. Eckstein, 105 Minn. 444, 454, 117 N. W. 830; Fiske v. Lawton, 124 Minn. 85, 91, 144 N. W. 455; State v. Probate Court, 133 Minn. 124, 155 N. W. 906, 158 N. W. 234; State v. Probate Court, 140 Minn. 342, 168 N. W. 14. Woerner, Am. Law of Adm. (2 ed.) § 154.

40 Levi v. Longini, 82 Minn. 324, 327, 84 N. W. 1017, S6 N. W. 333.

they may determine contested claims or title to real property asserted by those claiming by will or descent against strangers to the estate or asserted by strangers against those claiming through the estate; but in the exercise of their jurisdiction to ascertain and impose an inheritance. tax upon real property belonging to the estate, but not inventoried therein, there being no adjudication or proceeding looking to an adjudication of ownership in a court of competent general jurisdiction, they may determine the fact of ownership in the decedent at the time of his death upon which fact the right to impose a tax rests.11

20. Historical statement-Formerly in England the settlement of the estates of deceased persons was an important branch of the jurisdiction of courts of equity, a large proportion of the suits in chancery being administration suits, As then administered in that country, the jurisdiction of equity courts included nearly everything pertaining to the settlement of decedents' estates, except the probate of wills and the issue of letters testamentary and letters of administration, and, as incident thereto, the enforcement of the payment of legacies of personal property, of which the ecclesiastical courts had jurisdiction. The court of chancery or the chancellor, as the general delegate of the authority of the king as parens patriæ, had exclusive jurisdiction over the persons and estates of infants, lunatics, and all persons under guardianship. All guardians were appointed by that court, and it alone had power to commit the person and property of all such persons to the custody of guardians. Persons under guardianship were the wards of that court. But in most of the American states, courts called probate, surrogate, or orphans' courts were established at an early day for the settlement of the estates of decedents, and the determination of all questions arising in the course of administration, to the practical exclusion of equity jurisdiction over such matters. In many of the states jurisdiction was given to these probate courts over the persons and estates of all persons under guardianship, with power to appoint and remove guardians, and to control the persons and estates of the wards. Thus an important branch of equity jurisdiction, as formerly administered, was transferred to these courts. In some states, theoretically, courts of equity retained concurrent jurisdiction over these matters, although in practice they would not, in the absence of some distinctive equitable principle, assume to exercise it, but leave the matter to the special probate tribunals. In other states, the jurisdiction thus conferred upon the probate courts was held to be exclusive. The latter was the doctrine which prevailed in this territory and in the states from which it borrowed its probate system; and the provisions of the constitution defining the jurisdiction of the district court and probate court must be understood and construed with reference to this state of things then existing. To hold that the equity ju

41 State v. Probate Court, 140 Minn. 342, 168 N. W. 14.

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risdiction given by the constitution to the district court extends to everything which pertained to equity jurisdiction as formerly administered in England would be utterly inconsistent with the grant of jurisdiction to the probate court. Such a construction would limit the judicial power of the latter court over the estates of deceased persons to the mere probate of wills and the issuing of letters testamentary and of administration, and would deprive it entirely of all jurisdiction over the persons or estates of persons under guardianship.42 Prior to 1857 the ecclesiastical courts of England had practically exclusive jurisdiction over the probate of wills of personalty and the granting of letters of administration. They also had considerable jurisdiction over the payment of legacies, but they had no jurisdiction over devises of land. Prior to 1857 there was no provision whatever in England for the probate of wills of realty. In any trial at common law or in equity involving title to devised land the original will had to be produced and proved, as any other disputed instrument. The probate court of this state not only exercises the jurisdiction formerly exercised by the courts of common law and equity over the real estate of deceased persons, but it also exercises a jurisdiction over such real estate never exercised by those courts. The jurisdiction of the courts of common law and equity over such real estate was exercised by proceedings in personam. This was wholly inadequate to a complete and proper administration of such real estate. The legislature deemed it proper that the whole world should be bound by administration proceedings, and to accomplish this provided a proceeding in rem. This proceeding is not according to the course of the common law, and is not a mere substitute for any proceeding known to the common law in the administration of such real estate, but its scope and purpose are wholly different. The change from the proceeding in personam to one in rem is not a mere evasion of the constitutional rights of parties who would be entitled to personal notice under the old form of procedure. On the contrary, the legislature has a right to say that when the owner dies the court shall seize his property, and by constructive notice make the whole world parties. Where all the world are in fact proper or necessary parties, the doctrine of due process of law does not prevent the legislature from adopting a more appropriate, adequate, and complete remedy than that known to the common law.43

21. Legislative control-The jurisdiction of probate courts is fixed in general terms by the constitution and the legislature cannot change it, but the constitution does not define jurisdiction over the estates of de

42 State v. Ueland, 30 Minn. 277, 15 N. W. 245; McNamara v. Casserly, 61 Minn. 335, 342, 63 N. W. 880. See Woerner. Am. Law of Adm. (2 ed.) §§ 137-149.

01 State v. Ueland, 30 Minn. 277, 15

N. W. 245; Schmidt v. Schmidt, 47 Minn. 451, 50 N. W. 598; Woerner, Am. Law of Adm. (2 ed.) §§ 137-140.

43 McNamara v. Casserly, 61 Minn 335, 63 N. W. 880.

ceased persons and persons under guardianship. To determine the scope of such jurisdiction reference must be had to the law at the time the constitution was adopted. The legislature may give to the probate courts any powers or duties that are appropriate to administration or guardianship. The constitution defines the subjects of the jurisdiction. It is left to the legislature to define the extent of the subjects.** The jurisdiction of probate courts is derived from the constitution and cannot be enlarged or diminished by the legislature. Their jurisdiction over the estates of deceased persons is for the purpose of administering such estates, and includes all matters necessarily pertaining to the proper administration of them. What shall be done in the course and for the purpose of administering such estates is to some extent in the power of the legislature to prescribe. It may provide for some things which, though not necessary to administration, are appropriate to it; such as the partition of the real estate among heirs and devisees for the purpose of assigning it to them. Some things necessarily belong to administration, and the jurisdiction to do or cause to be done those things is beyond the power of the legislature to curtail; while other things are clearly foreign to administration, and jurisdiction over them cannot be conferred on the probate courts by statute. Thus, to take charge of and preserve the personal estate, to direct the payment of debts and legacies, and distribute the remainder of the personal estate among legatees and next of kin according to law, have always been regarded as, and are, necessarily matter of administration; and jurisdiction to determine who are creditors, legatees, and next of kin belongs appropriately to the court that controls administration. On the other hand, the determination of the rights of strangers to the estate, not interested in its administration, is clearly foreign to legitimate administration.45 The legislature may prescribe modes of procedure to be followed by the probate courts in the exercise of the jurisdiction conferred by the constitution, including the process or proceedings by which the jurisdiction shall attach to a particular estate.**

22. Exclusive-Within its sphere the jurisdiction of probate courts is exclusive. The constitution gives to probate courts the exclusive original jurisdiction over the estates of deceased persons and persons under guardianship, in the same manner and to the same extent that it gives to the district courts jurisdiction over civil cases in law and equity

44 State v. Ueland, 30 Minn. 277, 15 N. W. 245; Mousseau v. Mousseau, 40 Minn. 236, 41 N. W. 977; Comstock v. Matthews, 55 Minn. 111, 56 N. W. 583; State v. Probate Court, 103 Minn. 325, 115 N. W. 173; State v. Probate Court, 112 Minn. 279. 128 N. W. 18. See § 22. 45 Mousseau v. Mousseau, 40 Minn. 236, 41 N. W. 977.

46 In re Mousseau's Will, 30 Minn. 202, 14 N. W. 887; Culver v. Hardenbergh, 37 Minn. 225, 232, 33 N. W. 792; Mousseau v. Mousseau, 40 Minn. 236, 41 N. W. 977; Foreman v. Hennepin County, 64 Minn. 371, 67 N. W. 207; State v. Probate Court, 112 Minn. 279, 128 N. W. 18.

arising out of other matters of contract and tort." The probate court has exclusive original jurisdiction of the construction of wills for the purposes of administration. A bill in equity will not lie in the district court for that purpose.18 When a will has been duly proved and allowed in the probate court, and proceedings involving its construction and effect are pending therein, a district court is not authorized to construe the will upon a disclosure of a representative as garnishee. The district court should stay the garnishment proceedings pending a construction of the will by the probate court. The exclusive jurisdiction of the probate court cannot be interfered with by an injunction issued out of the district court.50 The district court cannot indirectly exercise original jurisdiction over a matter within the exclusive jurisdiction of the pro