plicable to the probate court, or is not inconsistent with the provisions of the probate act, or the act to provide for the appointment, and prescribe the duties of guardians. ISSUES OF FACT. Issues of fact joined in the probate court, may be tried in that court in all cases, where neither party elects to transfer the same to the district court, unless the probate judge shall, of his own motion, send it to the latter court for trial by jury, which he may do in his discretion. In the mandamus case, Gherke v. Freelon, July Term, 1855, the Supreme Court held that it was discretionary with the probate judge to order or certify an issue of fact to a district court, to satisfy his conscience on some disputed point, in accordance with the practice which prevails in courts of chancery. But since the amendments of 1855 to the Probate Act, below referred to, it would seem to be obligatory upon the probate judge to certify such issues to the district court for trial, upon the application of either party. Section 20 of the Probate Act, as amended April 23, 1855, provides for the trial of issues joined in the probate court, on applications for the probate of wills. (See sec. 20, post.) Section 294, as amended May 7, 1855, provides that in the cases enumerated therein, issues of fact joined in the probate court shall be certified for trial to the district court of the county, on the application of any person interested in, or affected by, the decision thereof. Section 314 (added by the amendment of April, 23, 1855) provides that, all other issues of fact joined in the probate court shall be disposed of in the same manner, as is provided in section 20, for issues joined on application for the probate of wills. In regard to the manner of making up issues of fact, to be tried in the district court, and the proceedings thereon, see sections 20, 294 to 296 inclusive, and 301 of the Probate Act, post. APPEALS FROM THE PROBATE COURT. Sections 363 to 365 inclusive, of the Practice Act, prescribe the cases in which appeals may be taken from the probate to the district court, the time in which they must be taken, etc. But the appellate jurisdiction conferred by the statute upon the district courts having been declared unconstitutional (ante p. 21), no appeal can now be taken from an order or judgment of a probate court, except to the Supreme Court, as provided by the Probate Act. The cases in which such appeals may be taken, the time within which they must be taken, the manner in which they must be perfected, etc., are prescribed in sections 297 to 302 inclusive, of the Probate Act, which see, post. Section 300 provides, that the provisions (as amended) of the Practice Act, in regard to appeals to the district court, (sections 363, 365) shall still be applicable to appeals from the probate court," so far as they do not conflict with the provisions of this act." See sections 297 to 302 of the Probate Act, post, and the notes to those sections. In regard to actions by and against executors and administrators, and other matters of practice, see the several sections of the Act, post. ESTATES OF DECEASED PERSONS. AN ACT TO REGULATE THE SETTLEMENT OF THE ESTATES OF DECEASED PERSONS, and Judge. The People of the State of California, represented in Senate and CHAPTER I. JURISDICTION. § 1. The county court, when sitting for the transaction of Probate Court probate business, shall be known and called the "Probate Court," and the county judge shall be ex-officio, probate judge. (a.) probated, etc. § 2. Wills shall be proved, and letters testamentary, or of In what Coun. administration, shall be granted: 1st. In the county of ty wills to be which the deceased was a resident at, or immediately previous to his death, in whatever place his death may have happened. 2d. In the county in which he may have died, leaving estate therein, and not being a resident of the state. (a.) There has been some diversity of opinion in regard to the proper title of the county judge, sitting as judge of the probate court, and the particular form in which orders etc., made in proceedings in the probate court, to which his signature is requisite, should be signed: as, whether the signature should be "A. B., county judge," or "A. B., county judge and ex-officio, judge of the probate court,"—or, simply, A. B., probate judge." The constitution (article 6, section 8,) provides that the " county judge" "shall hold his office for four years," and "shall perform the duties of surrogate or probate judge." Section 61 of the act of May 19, 1853, concerning "courts of justice" etc., provides that, "there shall be in each county, a probate court" etc; and sec. 62 enacts that, "the county judge shall be the judge of the probate court.” In the "act to regulate the settlement of the estates of deceased persons," the titles of "probate court," and "probate judge," are uniformly employed. The latter title is now adopted in the probate court of the city and county of San Francisco, in all proceedings therein. 3d. In the county in which any part of his estate may be, he having died out of the state, and not having been a resident thereof at the time of his death. (a.) The meaning of this provision, (subdivision 1 of sec. 2) is, that administration must be granted in the county of which deceased was a resident at the time of his death; and the words, "or immediately previous to," must be considered as mere surplusage: Beckett et al. v. Selover, 7 Cal. R., January term. It is the object of the law, that administration should not be granted until the death of the party, and only one administration within the state; it therefore makes his residence at the time of his death, the test by which to determine where the grant should be made. Accordingly, these two facts must be alleged in the petition; and they must be true in fact. If not true in fact, the proceedings are void; and the decision of the probate court upon these jurisdictional facts is not conclusive upon any one not actually before the court. Ibid. And, unless the court has jurisdiction, the proceedings, however regular, cannot be sustained, collaterally, as in a case where administration is granted by a probate court of the wrong county. Ibid, and cases cited in the opinion. The probate court cannot refuse to hear testimony to show that the deceased was not at the time of his death, a resident of the county where the estate was being administered. Ibid. In the provisions of the statutes relating to testamentary matters, the terms "resident" and "inhabitant" have the same purport, and are to be construed in reference to the domicil of the decedent. A domicil once acquired, continues till another has been gained animo et facto. Isham v. Gibbons, 1 Bradford's R., 70. Letters granted by a court having no jurisdiction are void; and the court having jurisdiction, may proceed to grant letters without a revocation of those previously issued. Ex parte, Barker, 2; Leigh, 719, and see Holyoke v. Haskins -noted ante p. 20. § 3. When the estate of the deceased is in more than one county, he having died out of the state, and not having been a resident thereof at the time of his death, the probate court of that county in which application is first made for letters testamentary, shall have exclusive jurisdiction of the settlement of the estate. (a) Quære. In the case of a non-resident of the State dying in one county, and leaving estate in another, but none in the county in which he diedwhere is administration to be granted? Such a case does not seem to be provided for in the statute, which gives jurisdiction, neither to the probate court of the county in which he died, nor of that in which he left estate; and a resort to the equity powers of the district court of the county in which the estate was situated, would seem to be necessary. When jurisdic first application. tion decided by CHAPTER II. OF THE PROOF OF WILLS. (a.) § 4. Any person having the custody of any will, shall, within thirty days after he shall have knowledge of the Person having death of the testator, deliver it into the probate court which to deliver it into has jurisdiction of the case, or to the person named in the custody of will probate court. present will, etc. will as executor. See post, sec. 13. § 5. Any person named as executor in any will, shall, Executor must within thirty days after the death of the testator, or within thirty days after he has knowledge that he is named executor, present the will, if in his possession, to the probate court which has jurisdiction. Renunciation, executor. § 6. If he intends to decline the trust, he shall, at the or petition by same time, file his renunciation in writing; if he intends to accept, he shall present with the will, a petition praying that the will be admitted to probate, and that letters testamentary be issued to him. [Forms No. 1 to 10, Appendix.] § 7. Every person who shall neglect to perform any of the duties required in the preceding sections, without reasonable non-compliance. cause, shall be liable to every person interested in the will, for the damages they may sustain in consequence of such neglect. Penalty for probate, where § 8. Any person named as executor in a will, though the Petition for will is not in his possession, may present his petition to the executor is not probate court which has jurisdiction, praying that the person in possession of the will may be required to produce it, that it may be admitted to probate, and that letters testamentary may be issued to him. in possession of will. [Forms No. 7, 18, Appendix.] Petition by § 9. Any person having an interest in the will, may, in an interest in like manner, present a petition praying that it may be re person having the will. quired to be produced and admitted to probate. [Form No. 7, Appendix.] [a.] The decisions of the courts of this State bearing upon the matters treated of in this division of the Statute, and not more properly falling under some particular Section, are collected at the end of the chapter. |