ORGANIZATION AND JURISDICTION

OF THE

PROBATE

COURTS

OF CALIFORNIA.

The Constitutional and Statutory provisions relating to the organization and powers of the Courts of this State, having cognizance of Probate proceedings, are as follows.

I. THE PROBATE COURT.

Section 8 of Article VI. of the Constitution provides that: "There shall be elected in each of the organized counties of this state, one county judge, who shall hold his office for four years. He shall hold the county court and perform the duties of Surrogate, or probate judge."

Chapter VII. of the Act of May 19, 1853, "concerning courts of justice and judicial officers," provides as follows:

THE PROBATE COURT.

§ 61. There shall be in each county, a probate court with the jurisdiction conferred by this chapter. (Embracing sections 61 to 65 inclusive).

§ 62. The county judge of each county shall be the judge of the probate court.

§ 63. The probate court shall have power to open and receive the 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 for cause shown according to law; to compel executors, administrators and guardians, to render an account when required, or at the period fixed by law; to order the sale of property of estates or belonging to minors; to order the payment of debts due by estates; to order and regulate all partitions of proper

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ty or estate of deceased persons; to compel the attendance of witnesses; to appoint appraisers or arbitrators; to compel the production of title deeds, papers, or other property of an estate, or of a minor; (a) and to make such other orders, as may be necessary and proper, in the exercise of the jurisdiction, conferred upon the probate

court.

§ 64. The county judge shall have power in vacation, to appoint appraisers, to receive inventories and accounts to be filed in his court; to suspend the powers of executors, administrators, or guardians in the cases allowed by law; to grant special letters of administration or guardianship; to approve claims and bonds, and to direct the issuance from this court, of all writs and process necessary in the exercise of his powers as probate judge.

§ 65. The county judge of the county of San Francisco, shall hold a probate court, at the city of San Francisco, on the third Monday of January, March, May, July, September and November; provided, that each term of said court shall continue until the commencement of the next term, unless all the business of the court be sooner disposed of. In the other counties of the State, the county judge shall hold a probate court on the fourth Monday of each month.

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," it is provided as follows:

§ 1. That the proceedings of the courts of probate, within the jurisdiction conferred on them by the laws, shall be construed in the same manner and with like intendments, as the proceedings of courts of general jurisdiction; and that the records, orders, judgments, and decrees, of the said probate courts, shall have accorded to them, like force and effect, and legal presumptions, as the records, orders, judgments, and decrees of the district courts.

§ 2. This act shall take effect only upon proceedings had or taken after its passage.

The foregoing sections, together with those contained in the probate act, comprise all the statutory provisions defining and specifying the jurisdiction and powers of the probate courts of this State; and to this statutory jurisdiction, they are strictly limited. The Supreme Court has repeatedly held them to be inferior courts, of special and limited jurisdiction, incapable of exercising any powers, or administering any remedies, other than those expressly conferred, and prescribed by statute.

(a) Compare Section 117 of the Probate Act, post.

The act of 1858, though it does not at all enlarge the jurisdiction of the probate courts, essentially modifies the strictness of the doctrine laid down in some of the authorities, in reference to the effect of their proceedings, and their powers in the exercise of their acknowledged jurisdiction. (a)

II. THE DISTRICT COURTS.

THEIR JURISDICTION WITH REFERENCE TO PROBATE PROCEEDINGS.

Section 6, of Article VI. of the Constitution, provides that— "The district courts shall have original jurisdiction in law and equity, in all civil cases, where the amount in dispute exceeds two hundred dollars, exclusive of interest, and in all issues of fact, joined; in the probate courts, their jurisdiction shall be unlimited."

(a) The Jurisdiction and General Powers of Probate Courts.

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In New York, and in some of the other States, certain incidental and constructive powers have been claimed for Surrogates' courts, as essential to the due exercise of the jurisdiction expressly conferred by law, and as being to that extent, inherent in all courts. A section of the New York Revised Statutes, as originally enacted, declared that no Surrogate shall, under pretext of incidental power or constructive authority, exercise any jurisdiction whatever, not expressly given by some statute of this State." (2 R. S. 1st ed., p. 221.) This restrictive clause was subsequently repealed (Laws of N. Y., 1837, p. 536), and since such repeal, the exercise of powers not enumerated in the statute, has been repeatedly sustained by the appellate courts of that State. Thus it has been held, that the Surrogate had power to vacate or set aside an irregular or ex parte order made by him, instead of putting the party to his appeal; to open a decree taken by default; to enter an order nunc pro tunc, if by inadvertence it was not entered at the proper time, and the like. (See 9 Paige, 128; 10 Paige, 316; 1 Bradford's R., 283; 1 Barb. Ch. R., 452, and the cases noted infra.)

The following cases, most of them decided in the Supreme Court of this State, bear more or less directly upon this question, in regard to the general powers and authority of Probate Courts, where not expressly marked out and defined by statute.

The Probate Court is an inferior court, and cannot take jurisdiction or administer remedies, other than those given in, and in the manner prescribed by, statute. Grimes' Estate v. Norris, 6 Cal. R., 621.

Probate Courts are courts of inferior and limited jurisdiction, and in pleading their judgments it is necessary to set out the facts which gave jurisdiction. Smith v. Andrews, 6 Cal. R., 652.

Proceedings in Probate Courts are summary and special, and must be in strict conformity with the law. Opinion, in Beckett v. Selover, 7 Cal. R., January Term.

The Probate Court is a court of special and limited jurisdiction. Though a settlement in the probate court is a final settlement, a complainant no party to it, may treat it as a nullity, and invoke the equitable powers of the district court, and compel the administrator to a full account. Clark v. Perry, 5 Cal. R., 58.

The District Courts of this State have the same control over the estates and persons of minors that the Courts of Chancery in England possess. This jurisdiction is conferred by the Constitution (art. vi, section 6), and cannot be divested by any legislative enactment. And the claim of exclusive, original jurisdiction in courts of probate, over the same subject matter is unfounded. Wilson et al. v. Roach et al. 4 Cal. 362.

The Probate Court has jurisdiction to try and determine issues of fact arising in proceedings before it. And the issues of fact joined in the probate court, which are sent to the district court for trial, are of that class upon which the probate judge is unwilling to pass his judgment, or where from great conflict of evidence a reasonable doubt must exist in his mind, as to which side has the right. Keller v. Franklin, 5 Cal. R. 432.

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

This section has been the subject of judicial construction by the Supreme Court. In the case of Reed et al. v McCormick, 4 Cal. R., 342, the court says:

"The sixth section of Article VI. of the Constitution, which provides that in all issues of fact, joined in the probate courts, the jurisdiction of the district courts shall be unlimited, does not give the district courts appellate jurisdiction from the probate courts. The word "unlimited," qualifies the amount in value, and not the term. original." "Issues of fact," etc., refer to issues to be tried."

And see Wilson et al. v Roach et al. 4 Cal. R., 362. Also, the opinion in Beckett v Selover, 7, Cal. R., January term.

Section 19 of the Judicial Act (stat. 1853, p. 287) provides that, in all issues of fact joined in the probate courts, the jurisdiction of the district courts shall be unlimited.

The language of this section, follows that of section 6, of article

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 nuuc pro tunc. Beckett et al. v. Selover, 7 Cal. R., January Term.

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 heir, shall be distributed among the other heirs, if the non-resident 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. R. 418.

The power of the probate judge, to remove in his discretion an administraior 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. Gherke, 6 Cal. R. 666.

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. R., 310.

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 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 Pickering, 283. 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. R. 437.

A grant of administration originally void, and not merely voidable, acquires no validity from an acquiescence of twenty years. Holyoke v. Haskins, 5 Pickering, 20. and see Ex parte Barker, noted under section 2 of the Probate Act. post.

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. R., January Term.

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's R. 90.

VI, of the constitution, and the construction given to the latter, in the case of Reed v. McCormick, above cited, is equally applicable to it.

Section 21, of the same act, provides that the appellate jurisdiction of the district courts shall extend to the hearing upon appeal, "an order or judgment of the probate court in the cases prescribed by statute."

Sections 363 to 365 inclusive, of the Practice Act, prescribe the cases in which appeals may be taken from a probate court to a district court, the time within which such appeal must be taken, etc.

But the above sections of the Judicial Act, and of the Practice Act, have been declared unconstitutional, so far as they undertake to confer appellate jurisdiction upon the district courts. (a)

It has also been held, that, inasmuch as the power to try de novo, issues which have been tried and decided, necessarily includes the power to reverse or modify such decisions, issues of fact already passed upon in the probate court cannot be transferred to the district court for trial; and so much of the act of May, 7, 1855 (amending the Probate act), as provides for such transfer, has been declared unconstitutional. See Deck's Estate v. Gherke, 6, Cal. R. p. 666.

Accordingly, no appeal can now be taken from the probate to the district court; nor can issues of fact be transferred to the latter, after being passed upon in the probate court. And the jurisdiction of the district courts, in probate proceedings, may now be considered as extending only to the trial of issues of fact certified to it, as provided by statute (b), and to the exercise of those general powers with reference to the estates and persons of minors, and the like matters, which it possesses by virtue of the equity jurisdiction, conferred upon it by the constitution. (c)

PRACTICE

IN PROBATE PROCEEDINGS.

Section 293 of the Probate Act, provides that: the practice in the district court shall be applicable to proceedings in the probate court, so far as the same does not conflict with any enactment specially ap

(a) People v. Peralta, 3 Cal. R., 379; Caulfield v. Hudson, ibid, 389; Hernandez v. Simon ib., 464; Reed v. McCormick, 4 Cal. R. 342; Townsend v. Brooks, 5 Cal. R. 52; Deck's Estate v. Gherke, 6 Cal. R. 666.

(b) See Title " Practice," etc., next page.

(c) See Sec. 6 of Article vi, of the Constitution, ante, p. 19. Also Wilson et al. v. Roach et al.; Clark v. Perry, and Keller v. Franklin, cited in note (a) ante, p. 19.