chattels real before probate or administration, and the payment of costs of administration and other matters in relation to the administration of personal estate, and the powers, rights, duties and liabilities of an executor or administrator in respect to personal estate, apply to real estate so far as the same are applicable, as if that real estate were a chattel real vesting in the executor or administrator, save that it shall not be lawful for some or one only of several joint executors or administrators, without the authority of the court, to sell or transfer real estate. Such real property is subject to the same liabilities for debts, costs and expenses, and with the same incidents, as if it were personal estate; but the act does not affect the order in which real and personal assets respectively shall be applied toward the payment of funeral and testamentary expenses, debts or legacies, or the liability of real estate to be charged with the payment of legacies.1

When a person dies possessed of real estate, the court shall, in granting letters of administration, have regard to the rights and interests of parties interested in such realty, and the heir at law, if he be not one of the next of kin, is equally entitled to the grant of letters of administration with the next of kin.

Generally, in the United States, real property is subject to probate jurisdiction as outlined in the English statute.2

1 Personal property of estate is primarily liable for payment of debts and legacies, see §§ 784-785. As to charges for payment of debts and legacies, see §§ 782-812.

2 See § 1183.

As to the common law distinction between realty and personalty for the payment of debts, see §§ 782-785, 1182.

§1289. What Courts Exercise Probate Jurisdiction in England.

As has been hereinbefore shown, probate jurisdiction in England was originally vested in the ecclesiastical courts. By the Court of Probate Act, 1857, statute of 20 & 21 Victoria, ch. 77, the Court of Probate was formed, in which was vested jurisdiction of matters of probate and administration. Later, by the Supreme Court of Judicature Act, 1873, statute of 36 & 37 Victoria, ch. 66, various courts having jurisdiction in law, equity, and other matters, including the Court of Probate, were incorporated into one Supreme Court of Judicature. This supreme court consists of two permanent divisions, one designated as the High Court of Justice and the other as the Court of Appeal. Both divisions are superior courts of record, the High Court of Justice generally assuming original jurisdiction, while the matters brought before the Court of Appeal are principally appellate. A department of the High Court of Justice attends to matters of probate and administration.

The Supreme Court of Judicature Act did not create a new jurisdiction in matters of probate, but assigned to the Probate Division of the High Court of Justice those matters which had been within the exclusive jurisdiction of the Court of Probate as it theretofore existed. By 4 of the Court of Probate Act, 1857, the Court of Probate had voluntary and contentious jurisdiction and authority in relation to granting or revoking probate of wills and letters of administration of the effects of deceased persons theretofore vested in other courts, together with full authority to hear and determine all questions relating to matters and causes testamentary. Matters pertaining to the construction of wills, however,

4

belong more properly to the courts of chancery; and by § 23 of the Court of Probate Act, 1857, the Court of Probate could not entertain suits for legacies and for the distribution of the residue of estates. By § 34 of the Judicature Act of 1873, the Probate Division was assigned all causes or matters which had been within the exclusive cognizance of the Court of Probate; and matters relating to the administration of the estates of deceased persons and of the execution of private and charitable trusts were assigned to the Chancery Division. The jurisdiction of the Probate Division is principally to decree whether or not the purported will presented is entitled to be admitted to probate, to determine whether an executor has been appointed and if he is qualified, or if none is named, then to determine who is entitled to letters of administration. Matters pertaining to the construction of wills and the enforcement of its provisions are properly within the jurisdiction of the Chancery Division. However, under the Supreme Court of Judicature Act, 1873, a judge in probate may exercise the jurisdiction formerly vested in the court of chancery, to restrain dealings with property; and by § 24 of said act it is provided that law and equity may be concurrently administered in the same action, as, for instance, a defendant in an action at law may set up an equitable defense. The probate judge may, in order to prevent needless litigation, determine all matters between the parties if all persons interested are before the court

3 Warren v. Kelson, 1 Sw. & Tr. 290; In re Walkeley, 69 L. T. 419. 4 See, also, Judicature Act, 1875,

§ 11.

5 Warren v. Kelson, 1 Sw. & Tr.

290; In re Tharp (Tharp v. Macdonald), L. R. 3 Pro. Div. 76.

6 Nicholas v. Dracachis, L. R. 1 Pro. Div. 72.

and the matter in controversy arises as an issue in the suit under the pleadings."

The Court of Probate Act, 1857, and the Supreme Court of Judicature Act, 1873, provide for a principal probate registry and for district registries, and for the appointment of registrars and officers. The registrars have jurisdiction of probate and administration in connection with non-contentious business and operate under rules laid down by the lord chancellor and other judges. And under the Court of Probate Act, 1857, and the amendatory act of 1858, statute of 21 & 22 Victoria, ch. 95, County Courts have probate jurisdiction of contentious matters where the personal estate does not exceed two hundred pounds and the real estate three hundred pounds at the time of the death of the decedent. § 1290. Division of Matters of Probate and Administration Into Contentious and Non-Contentious Business.

In England the business of the Probate Division of the court is divided into contentious and non-contentious business. By the Court of Probate Act, 1857, statute of 20 & 21 Victoria, ch. 77, it is provided by §§ 29 and 30 that the procedure shall be according to the form of practice in the Prerogative Court, but that rules and orders regarding the procedure and practice of the probate court and the duties of district registrars and others, and for the determination of what shall be considered contentious or non-contentious business may be made by the lord chancellor and other judges. By § 2 of the above act common form business is defined to mean the obtaining probate or of administration where there is no con

7 In re Tharp (Tharp v. Macdonald), L. R. 3 Pro. Div. 76.

tention as to the right thereto, including the passing of probates and administrations through the Court of Probate in contentious cases when the contest is terminated, and all business of a non-contentious nature to be taken into the court in matters of testacy and intestacy, not being proceedings in any suit, and also the business of lodging caveats against the grant of probate or administration.

In accordance with the above statute rules and orders were promulgated in 1862 and 1863 and are still in force and effect, except as they have been changed from time to time. Under such rules a proceeding not included under the expression "common form business," except the issuance of caveats, is considered as contentious business. The Supreme Court of Judicature Acts of 1873 and 1875 made no changes in the rules of practice and procedure regarding non-contentious business."

§ 1291. Distinction Between Probate of Will in Common Form and in Solemn Form.

The law of England recognizes two forms of probate, the common form and the solemn form, or per testes.10 A will may be proved in common form only when there is no contest. Under the common form the will is admitted to probate without citing any of the parties interested under the will, or those who would have succeeded

8 Rule 3 of rules and orders for the Court of Probate respecting contentious business.

9 In re Tomlinson, L. R. 6 Pro. Div. 209.

By the Judicature Act of 1875, § 18, the rules of the Court of Probate remain in force in the High Court and Court of Appeal

until they shall be altered or annulled by any rules of the Supreme Court made subsequent to the act. The Supreme Court formulated rules in 1883, but did not repeal the probate rules of 1862 and 1863.

10 Swinb., Wills, pt. 6, § 14, pl. 1; Godolph, pt. 1, ch. 20, § 4.