ORGANIZATION AND JURISDICTION

OF THE

COURTS

PROBATE

OF CALIFORNIA.

THE provisions of the State Constitution and the Code relating to the organization and powers of the courts of this State having cognizance of probate proceedings, are as follows:

Section 1, of Article VI, of the Constitution, provides that- old Constitution

"The judicial power of this State shall be vested in a Supreme Court, in District Courts, in County Courts, in Probate Courts, and in Justices of the Peace, and in such Recorder's and inferior courts as the legislature may establish in any incorporated city or town."

In the latter part of section eight of the same article, it

is provided that.ee New Some article tution "The county judges shall also hold in their several counties, probate courts, and perform such duties as probate judges, as may be prescribed by law."

The latter part of section seven of the same article, provides that

"In the city and county of San Francisco, the legislature may separate the office of probate judge from that of county judge, and may provide for the election of a probate judge, who shall hold his office for the term of four years."

Chapter VI, Title I, Part I, of the Code of Civil Procedure, provides as follows:

SEC. 94. There must be a probate court held in each of the counties.

SEC. 95. The county judge of each county, except in the city and county of San Francisco, is the judge of the pro

bate court.

SEC. 96. In the city and county of San Francisco the probate court is held by a probate judge elected by the electors thereof, at the judicial elections, and who holds his office for the term of four years from the first day of January next succeeding his election.

Page 2.

97. The Probate Court has jurisdiction:

1. To open and receive proof of last wills and testaments, and to admit them to probate;

To grant letters testamentary, of administration, and of guardianship, and to revoke the same;

3. To appoint appraisers of estates of deceased per

sons;

4. To compel executors, administrators, and guardians to render accounts;

5. To order the sale of property of estates, or belonging to minors;

6. To order the payment of debts due from estates; 7. To order and regulate all distributions and partitions of property or estates of deceased persons;

8. To compel the attendance of witnesses, and the production of title deeds, papers, and other property of an estate, or of a minor;

9. To exercise the powers conferred by Title XI, Part III, of this Code;

10. To make such orders as may be necessary to the exercise of the powers conferred upon it.

act, or in a manner other than prescribed therein.

By the act of March 27, 1858 (Stat. of 1858, p. 95), entitled "An Act to give to the proceedings of courts of probate the same effect as courts of general jurisdiction," the powers of the probate court were very much amplified, and like force, effect, and legal presumptions were given to its records, as to the records, orders, judgments and decrees of the district courts. Sections 98 and 187 of Part I of the Code of Civil Procedure, retain these salutary provisions. The latter applies equally to all courts. The said sections provide as follows:

"SEC. 98. The proceedings of this court are construed in

the same manner, and with like intendments, as the proceedings of courts of general jurisdiction, and to its records, orders, judgments and decrees, there is accorded like force, effect and legal presumptions, as to the records, orders, judgments and decrees of district court."

"SEC. 187. When jurisdiction is, by this code or by any other statute, conferred on a court or judicial officer, all the means necessary to carry it into effect are also given, and in the exercise of the jurisdiction, if t'ie course of proceeding be not specifically pointed out by this code or the statute, any suitable process or mode of proceeding may be adopted which may appear most conformable to the spirit of this code."

The following are some of the leading decisions in this and other States on the jurisdiction of probate courts. Other decisions will be found under the appropriate sections in the following chapter:

Death prior to passage of probate law.-Probate courts have no jurisdiction of estates of persons who died prior to the passage of the probate laws. Paty v. Smith, July Term, 1872.

Probate courts have no jurisdiction to administer upon estates of deceased persons who died prior to the adoption of the State Constitution. Downer v. Smith, 24 Cal. 114.

Residence. Unless the court has jurisdiction the proceedings, however regular, cannot be sustained even when called in question collaterally, as in a case where administration is granted by a probate court of the wrong county. Beckett et al. v. Selover, 7 Cal. 215.

The facts of the death of the intestate, and of his residence within the county are foundation facts, upon which all the subsequent proceedings of the court must rest. Unless these facts exist, the court can not make a single binding order in reference either to the subject matter or the person. Haynes v. Meeks, 10 Cal. 110.

District court.-The jurisdiction of the probate court over probate matters is not exclusive. Most of its general powers belong peculiarly and originally to the court of chancery, which still retains its jurisdiction. And the district courts, as courts of chancery, may take jurisdiction of the settlement of an estate when there are peculiar circumstances of embarrassment to its administration, and when the assuming jurisdiction would prevent waste, delay, and expense, and thus conclude by one action and decree a protracted and vexatious litigation. Deck v. Gherke, Admr., et al., 12 Cal. 433.

The jurisdiction of the probate courts over the estates of deceased persons does not divest the district courts of their general jurisdiction, as courts of chancery over actions of settlement of the affairs of a partnership where one of the partners is deceased. Griggs v. Clark, 23 Cal. 427.

Judgments of probate court.-When the probate court has jurisdiction of the subject matter, all intendments are, under the statutes of California, in favor of the correctness of the action of the court, the same as in other courts of record. One attacking a judgment or order of a probate court, made within the scope of its jurisdiction must affirmatively show error.

Lucas v. Todd, 28 Cal. 182. The record of the probate court admitting a will to probate and ordering letters testamentary to be issued to the executors is competent evidence of the fact of the death of the decedent, if it contains all the necessary recitals to show that the court had acquired jurisdiction both of the subject matter and of the parties who are required by the statute to be cited. Randolph v. Baque, October Term, 1872, (Pac. Law Rep., Vol. IV, p. 221, and see further on same decisions under sec. 1304, post.)

If the probate court, in a matter where it has jurisdiction, makes an order upon insufficient evidence, or contrary to the evidence, the order cannot on that ground be attacked in a collateral proceeding. Boyd v. Blackman, 28 Cal. 19. Surrogates' courts proceed according to the course of the common and ecclesiastical law, as modified by statutory regulations. Where jurisdiction is given by statute, the mode of exercising it, in cases not specially provided for, must be regulated by the court in the exercise of a sound discretion, according to circumstances. Campbell v. Logan, 2 Bradford, 90.

Expenses of administration.-Services rendered and money advanced at the request of an administrator, for the benefit of an estate are expenses of administration," and the probate court has exclusive original jurisdiction to adjust and enforce such demands. Gurnee v. Malone, 38 Cal. 85.

Conveyance of land.—The probate court has jurisdiction to compel the execution of the conveyance of land by an administrator, in conformity with a sale made under its order and duly confirmed. Est. of Lewis, 39 Cal. 306. In pleading a judgment of the probate court it is not necessary to allege the facts conferring jurisdiction, but the judgment may be stated to have been duly rendered. Beans v. Emanuelli, 36 Cal. 117.

The jurisdiction of the probate court to enforce specific performance by an administrator of a contract of deceased to convey real estate, can be exercised only where there is a bond, or the agreement to make title is in writing. Peters v. Phillips, 19 Tex. 70; but see Hartley's Texas Digest, Art. 1162.

Lunatic, business with.-And generally when a probate court, having acquired jurisdiction, has decided any point legitimately before it, its decision cannot be called in question except by proceedings in that court. The plaintiff having been pronounced non compos mentis by the probate court, and and a guardian appointed, the plaintiff afterward transacted some business, and the validity of the transaction being called in question, defendant offered to prove, as matter of fact, that plaintiff was of sound mind at the time. Held, that the decision could not be questioned in that manner. Leonard v. Leonard, 14 Pick. 283.

Letters of guardianship of a lunatic, issued by a probate court, cannot be questioned in a collateral proceeding, Warner et al. v. Wilson. 4 Cal. 310. Legatee.--The probate court has jurisdiction to compel an executor to deliver to a legatee property specifically bequeathed to him. Fonte v. Horton, 36 Miss. 350.

The ordinary and appropriate jurisdiction of the probate court will not be defeated because, by the rules and course of proceeding in another form, the party obtaining the decree will be restrained from reaping the benefits of it; and hence the probate court will proceed to render a decree in favor of a specific leg tee of a slave, against the executor for hire, although the executor may be entitled in a court of equity to an injunction against the collection of the decree, upon the ground that the legatee is indebted to the testator in a sum exceeding the amount of hire claimed. Ibid.

Probate courts are of general jurisdiction over the estates of deceased persons, and all presumptions are in favor of the regularity of their proceedings. Those proceedings cannot be impeached, except for fraud, or by showing that in the particular instance the jurisdiction did not attach. Alexander v. Maverick, 18 Tex. 179.

The county court has no power to annex as a condition to the grant of administration, that the administrator shall pay the costs of a previous pro tem. appointment, or any other conditions, except such as are provided by law. Cain v. Haas, 18 Tex. 616.

Void grant of administration.-A grant of administration originally void, and not merely voidable, acquires no validity from an acquiescence of twenty years. Holyoke v. Haskins, 5 Pick. 20; and see ex parte Barker, noted under section 1294, post.

Resignation of administrator.-Payment in court.-An administrator having resigned on settlement, the judge of the probate court found him indebted to the estate in the sum of $16,000, and ordered him to pay it into court, and upon his refusal, the heirs brought suit on his administration bond: Held, that there was no law making the probate judge a fiscal agent, and the decree for the payment of money into court was coram non judice. Wilson et al. v. Hernandez, 5 Cal. 437.

Removal of administrator.--The power of the probate judge, to remove in his discretion an administrator for any of the causes named in the statute, will not be interfered with by the appellate court, unless it should be clearly shown that there has been gross abuse of discretion. Deck's Estate v. Gherkce, 6 Cal. 666.

Contempt. The probate court has power to punish and imprison by attachment for contempt, an administrator, guardian or executor, for his refusal or failure to comply with any lawful order or decree of the court. Watson v. Williams, 36 Miss. 333; Vertner v. Martin, 10 S. & M. 103; Walker's R. 310. And it seems that the action of the probate court in punishing for a contempt is not liable to review or the subject of appeal. Ibid.

Probate courts before act of 1858.-Courts of probate in this State, in the construction of their proceedings had before the passage of the act of 1858, are to be regarded as courts of limited and inferior jurisdiction. Townsend v. Gordon, 19 Cal, 188.

Foreign Legacy.-Whether a probate court in one State, in which ancillary administration with the will annexed has been granted, can enforce the payment of a legacy bequeathed by the will--quære? Lovelady v. Davis, 33 Miss. 577.

Non-resident heir.-The probate court has no power to direct that the portion of an estate of an intestate originally allotted to one of the heirs at law, a non-resident, shall be distributed among the other heirs, if the nonresident heir shall fail to appear and claim it within a year. The money should be paid into the State treasury until claimed by the owner or his representatives. Pyatt v. Brockman, 6 Cal. 418.

Notice. The allegations in a petition for administration are not sufficient to give the court jurisdiction, unless proper notice be given to bring the parties before the court. But if proper notice was in fact given, and the proof was merely defective, it would seem competent for the court to receive another affidavit of the clerk, and file the same nunc pro tunc. Beckell et al v. Selover, 7 Cal. 215.