247. Relates back to cure defects-The probate of a will relates back and gives effect to a deed made by a devisee before the probate.11 At common law an executor could do nearly all acts under the will before it was proved that he could do afterwards, and, when the will was proved, it related back and cured his acts.42 43 248. Exclusive original jurisdiction in probate court-The probate court is invested by the constitution with exclusive original jurisdiction over the probate of wills. The district court has no authority in an original action to determine whether an instrument proposed for probate is the last will of a deceased person.** 249. Agreements not to probate-If a valid will is presented for probate it is the duty of the court to admit it to probate regardless of any agreement of the interested parties to the contrary.45 DOMESTIC WILLS 250. Delivery of will to probate court-Duty of custodian-StatuteA person who has the custody of a will shall forthwith, after notice or information of the death of the testator, deliver such will into the probate court which has jurisdiction thereof, or to the executor named in the will; and if a person, without reasonable cause, neglects so to deliver a will after being duly cited for that purpose by such court, he shall be deemed guilty of contempt of court.46 While this statute requires an executor named in a will in his custody to deliver it to the probate court it does not require him to petition for its probate or to defend it when its probate is contested. It is immaterial who delivers a will to the probate court.48 It is only the last will that must be delivered. A prior will need not be delivered, at least until the last will is refused probate. The probate court cannot refuse probate of a will because of delay in presenting it for probate. Any person interested in the estate, such as a legatee, devisee, or creditor of the testator, may apply to the probate court to have a will exhibited. The statute is not 49 41 Babcock v. Collins, 60 Minn. 73, 76, 61 N. W. 1020. 42 Babecek v. Collins, 60 Minn. 73, 61 N. W. 1020. See § 725. 43 In re Penniman's Will, 20 Minn. 245 (220); Culver v. Hardenbergh, 37 Minn. 225, 233, 33 N. W. 792. See, as to the ancient jurisdiction of ecclesiastical and chancery courts in England, Schmidt v. Schmidt, 47 Minn. 451, 50 N. W. 598. 44 Brown v. Webster, 87 Neb. 788, 128 N. W. 635. 45 In re Dardis' Will, 135 Wis. 457, 115 N. W. 332; In re Rice's Will, 150 Wis. 401, 136 N. W. 956; In re Staab's 47 50 Will, 166 Wis. 587, 166 N. W. 326; Stimp- 46 G. S. 1913, § 7258. See 40 Cyc. 1226; Woerner, Am. Law of Adm. (2 ed. 214. 47 Kelly v. Kennedy, 133 Minn. 278, 158 N. W. 395; Doan v. Herod, 56 Ind. App. 663, 104 N. E. 385. 48 In re Livingston's Estate, 179 Iowa 183, 153 N. W. 200. 49 Rodisch v. Koethe, 178 Ill. App. 286. 50 In re Barney's Will, 187 Mich. 145, 153 N. W. 730. See § 246. The exclusive. The court may act under its general jurisdiction.51 statute has only a local application. It does not authorize the court to compel a foreign executor to produce a will which has been disallowed in the jurisdiction of his appointment.52 It has never been decided whether a private action will lie under this statute. Under similar statutes in many states a private action is authorized.53 In a private action under a similar statute it has been held that the statute did not apply to one coming into possession of the will casually after the death of the testator.54 251. In what county-The proceedings must be had in the county wherein the decedent resided at the time of his death.55 252. Minors-Guardians ad litem-Guardians ad litem need not be appointed for minors interested in the estate.56 57 253. Who may petition for probate-Statute-Any executor, devisee, or legatee named in a will, or any other person interested in the estate, at any time after the death of the testator, may petition the probate court of the proper county to have the will proved, whether the same be in his possession or not, or is lost or destroyed, or beyond the jurisdiction of the state, or a nuncupative will. It is not essential that the petitioner have the will in his possession." An executor named in a will may petition for its probate, but it is not his duty to do so.5o A creditor of the testator or of a legatee is interested in the estate and may petition for the probate of a will. An assignee of a beneficiary under the will may petition for its probate.1 Parties may be estopped by their conduct from seeking the probate of a will.62 60 58 254. Petition for probate Contents-Statute-Every petition for the probate of a will shall show: 1. The jurisdictional facts. 2. The name and residence of the person named as executor, if known, and the name of the person for whom letters are prayed. 51 Stebbins v. Lathrop, 4 Pick. (Mass.) 33; Woerner, Am. Law of Adm. (2 ed.) § 214. 52 Loring v. Oakey, 98 Mass. 267. 53 Thayer v. Kitchen, 200 Mass. 382, 86 N. E. 952 (remedy under statute held exclusive). See 40 Cyc. 1226. 54 Barney v. Barney, 192 Mich. 45, 158 N. W. 101. 55 G. S. 1913, § 7205. See §§ 622, 647. 56 In re Mousseau's Will, 30 Minn. 202, 14 N. W. 887. See Balch v. Hooper, 32 Minn. 158. 20 N. W. 124; Ladd v. Weiskopf, 62 Minn. 29, 36, 64 N. W. 99. 57 G. S. 1913, § 7266. See 16 Ency. Pl. & Pr. 997; 23 A. & E. Ency. of Law (2 ed.) 122; 40 Cyc. 1229; 28 R. C. L. 360; Woerner, Am. Law of Adm. (2 ed.) § 214. 58 G. S. 1913, § 7266; Putnam v. Pitney, 45 Minn. 242, 244, 47 N. W. 790; Pederson v. Christofferson, 97 Minn. 491, 106 N. W. 958. 59 Burmeister v. Gust, 117 Minn. 247, 135 N. W. 980; Kelly v. Kennedy, 133 Minn. 278, 158 N. W. 395. 60 Stebbins v. Lathrop, 4 Pick. (Mass.) 33. 61 In re Rankin's Estate, 164 Cal. 138, 127 Pac. 1034. 62 Ann. Cas. 1918A, 1200. 3. The names, ages, and places of residence of the heirs and devisees of the decedent, so far as known to the petitioner. 4. The probable value and character of the property of the estate. real and personal. No defect of form or in the statement of facts contained in the petition shall invalidate the probate of a will.63 The filing of the petition gives the court jurisdiction. The jurisdictional facts are the death of the testator and his domicil in the county at the time of his death."5 The failure of a petition to name the heirs is not jurisdictional. The statute is directory as to everything but the jurisdictional facts."6 It is discretionary with the court to allow a petition to be withdrawn. A petitioner cannot withdraw a petition as of right. 67 255. Filing petition-Notice-Proof and allowance of will-Such petition shall be filed in the probate court, and thereupon the court shall appoint a time and place for proving the will, and cause notice thereof to be given as provided by law. At the time appointed, the court shall hear proof and allow or disallow the will. If the probate is not contested, the court may admit the same to probate on the testimony of one of the subscribing witnesses only, if such witness testifies that the will was executed in all respects as required by law, and that the testator was of full age and sound mind at the time of its execution. There must be three weeks' published notice. The notice is not jurisdictional even as to residents of the state. The jurisdiction is acquired by the filing of the petition and not by the notice. The want of notice is not a ground for collateral attack."1 No notice is necessary for the probate of a will as against non-residents. The proceeding is in rem.72 The published notice provided by statute gives the probate court jurisdiction of the entire proceeding for the probate of the will. No other notice or service of process is necessary.73 Personal service of notice is not required even though all the interested parties reside in the county. A 63 G. S. 1913, § 7267. See 16 Ency. Pl. & Pr. 999; 40 Cyc. 1265; Woerner, Am. Law of Adm. (2 ed.) § 261. 64 Bombolis v. Minneapolis & St. Louis R. Co., 128 Minn. 112, 150 N. W. 385; In re Edward's Estate, 154 Cal. 91, 97 Pac. 23. 65 23 A. & E. Ency. of Law (2 ed.) 114; 40 Cyc. 1266. See §§ 616, 622, 647. 66 Nicholson v. Leatham, 28 Cal. App. 597, 153 Pac. 965. 67 In re Binney's Will (Mass.) 135 N. E. 168. 68 G. S. 1913, § 7268. See 16 Ency. Pl. & Pr. 1003; 40 Cyc. 1263. 69 See §§ 41, 42. 69 70 74 70 In re Barlow's Estate (Minn.) 188 N. W. 282. See §§ 31, 40. 71 In re Barlow's Estate (Minn.) 188 N. W. 282; Dickey v. Vann, 81 Ala. 425, 8 So. 195; Wetmore v. Parker, 52 N. Y. 450; 16 Ency. Pl. & Pr. 1004; 40 Cyc. 1378. 72 In re Horton's Will, 217 N. Y. 363, 111 N. E. 1066. 73 In re Mousseau's Will, 30 Minn. 202, 14 N. W. 887; Larson v. How, 71 Minn. 250, 253, 73 N. W. 966; In re Sieker's Estate, 89 Neb. 216, 131 N. W. 204. See 35 L. R. A. (N. S.) 1058. 74 In re Sieker's Estate, 89 Neb. 216, 131 N. W. 204. hearing on a petition before the expiration of the three weeks' statutory notice is premature and an order thereon is voidable on direct attack.75 256. Order allowing or disallowing will-There should be a formal order allowing or disallowing the will. The fact of the order being made should be noted in the register and the order entered in the record of orders.76 A formal order, however, is not essential to the validity of the proceedings. It is sufficient if the allowance or disallowance of the will by the court may be inferred from the records. It is sufficient if the will and proof thereof are recorded and letters testamentary thereon are issued." The order of the probate court admitting a will to probate is in effect a judgment or decree determining the validity of the will.78 257. Allowance in part-A will may be allowed in part and rejected as to a part on account of fraud, undue influence, or partial revocation."9 258. Certificate of proof of will-Evidence-Statute-Every will, when proved as provided in this chapter, shall have a certificate of such proof indorsed thereon or annexed thereto, signed by the judge of the probate court and attested by its seal; and every will so certified, and the record thereof, or a transcript of such record, certified by the judge of the probate court and attested by its seal, may be read in evidence in all the courts within this state, without further proof.80 The requirement of a certificate is merely directory. The failure of the court to comply with the statute does not affect the validity of the order or judgment allowing a will.81 259. Decree of probate in rem and binding on all-The decree of a court having jurisdiction admitting a will to probate is in the nature of a judgment in rem and establishes the will against all the world. Any person interested in the estate of the decedent may make himself a party to the proceedings and he is forever bound by the decree whether he is in fact a party or not.3 82 A foreign decree of probate may be attacked for want of jurisdiction. It may be shown that the decedent was 75 In re Johnson's Estate, 98 Neb. 799, 154 N. W. 550. 76 See §§ 10, 255. 77 Wilt v. Cutler, 38 Mich. 189; In re Warfield's Estate, 22 Cal. 51; 16 Ency. Pl. & Pr. 1043; 40 Cyc. 1343. 78 In re Penniman's Will, 20 Minn. 245 (220). 79 §§ 173, 220; 16 Ency. Pl. & Pr. 1046; 23 A. & E. Ency. of Law (2 ed.) 139; 40 Cyc. 1233; 28 R. C. L. 358; Woerner, Am. Law of Adm. (2 ed.) 222; 18 Ann. Cas. 388; 34 L. R. A. (N. S.) 971; 41 L. R. A. (N. S.) 1126. 80 G. S. 1913, § 7272. 81 In re Warfield's Estate, 22 Cal. 51; Reese v. Nolan, 99 Ala. 203, 13 So. 677; Roberts v. Flanagan, 21 Neb. 503, 32 N. W. 563; 16 Ency. Pl. & Pr. 1044; 40 Cyc. 1344. 82 In re Penniman's Will, 20 Minn. 245 (220); Bonnemort v. Gill, 167 Mass. 338, 45 N. E. 768; Johnes v. Jackson, 67 Conn. 81, 34 Atl. 709; In re Horton's Will, 217 N. Y. 363, 111 N. W. 1066; 23 A. & E. Ency. of Law (2 ed.) 132; 40 Cyc. 1370; 28 R. C. L. 375; 21 L. R. A. 680. not domiciled within the jurisdiction of the court. A finding of fact as to domicil by the foreign court is not conclusive.88 260. Collateral attack-An order, judgment or decree allowing or disallowing a will is not subject to collateral attack for error, irregularity or fraud. According to the better view this is true though a fatal defect appears on the face of the will.84 If made by a domestic court it is not subject to collateral attack by any one for want of jurisdiction not affirmatively appearing on the face of the record.85 261. Practice when subsequent will, codicil, or revocation of will is presented Statute-If, upon the hearing on the petition for proof of will, another instrument in writing, purporting to be a subsequent will, or codicil or revocation of said will, or any part thereof, shall be presented in opposition thereto, said instrument shall be filed, and thereupon said hearing shall be adjourned to a day to be appointed by the court, and notice shall be given to all persons interested, which notice shall set forth the reason of said adjournment and the grounds of opposition to said will, and shall be served personally or by publication, or both, as the court may direct; at which time proof shall be taken upon all of said wills, codicils, or revocations, and all matters pertaining thereto, and the court shall determine which of said instruments, if either, should be allowed as the last will and testament of the deceased. If, upon said hearing, it shall appear that neither of said instruments should be allowed as the last will and testament of the deceased, and that said estate should be administered, the probate court shall thereupon issue letters of administration to the person or persons entitled thereto by law.86 CONTESTS 262. Who may contest probate-All persons interested in the estate. may contest the probate. A general creditor of an heir cannot contest it, but a judgment creditor of an heir of one dying seized of real estate, which, in the absence of a will, would pass to the heir, may contest the probate of a will that would defeat his lien.87 The only persons who may contest the probate of a will are those who, but for the will, would succeed, in some degree, to the decedent's estate, or be financially benefited by its disallowance.88 A widow of the testator may contest a will 83 In re Horton's Will, 217 N. Y. 363, 111 N. E. 1066. See § 647. 84 Wheaton v. Pope, 91 Minn. 299, 307, 97 N. W. 1046. See §§ 244, 255, 259, 260, 274, 309, 615, 616; Starnes v. Thompson, 173 N. C. 466, 92 S. E. 259; In re Ryan's Estate, 177 Cal. 598, 171 Pac. 297; 16 Ency. Pl. & Pr. 1018; 23 A. & E. Ency. of Law (2 ed.) 132; 40 Cyc. 1377; 28 R. C. L. 375; Woerner, Am. Law of Adm. se G. S. 1913, § 7273. See § 319. 87 In re Langevin's Will, 45 Minn. 429, 47 N. W. 1133. See L. R. A. 1918A, 459; 14 Ann. Cas. 334. 88 In re Pepin's Estate, 53 Mont. 240, 163 Pac. 104; Gruender v. Frank, 267 |