CHAPTER XVIII. PROBATE JURISDICTION. §303. Constitutional and Statutory Provisions. $304. Nature of Probate Jurisdiction. $305. The Power of the Court as to Extent. $306. Equity Jurisdiction in Probate Courts. $307. Jurisdiction and Proceedings. $308. Delay as to Probates. $309. Jurisdiction Necessary to Conclusiveness in Order to Make the Probate of a Will. $310. Necessity of Probate. §311. Delegation of Power. $312. Who May Propound a Will for Probate. $313. Probate of Will. $314. The Probate of Will Relates Back to Death of Testator. §315. The Effect of an Unprobated Will. $316. The Conclusiveness of the Probate of a Will. $317. The Revocation of Probate. $318. The Probate of Lost Wills. $319. Definition of Foreign Wills. $320. The Probate of Certain Foreign Wills. §303. Constitutional and Statutory Provisions. The matter of probate jurisdiction is regulated by statute, for it is generally conceded that, independent of statutory authority, neither equity nor law has any probate jurisdiction. It is provided in the constitution1 that in each county organized for judicial purposes there shall be a probate court. The jurisdiction, powers and duties shall be prescribed by law, * and further it is provided2 that judges of probate shall be elected in the counties in 1. Beecher's Annotated Constitution of 1908, Article XII, Section 13. 2. Beecher's Annotated Constitution of 1908, Article XII, Section 14. * * which they reside, and shall hold office for four years and until their successors are elected and qualified. They shall be elected on the Tuesday succeeding the first Monday of November, Nineteen hundred twelve, and every four years thereafter. Pursuant to similar constitutional provisions contained in the constitution of 1850, the statutes were passed providing that every judge of probate shall hold a probate court in his county, at the times and places established by law, and may adjourn the same from time to time as occasion may require, and that every probate court shall be a court of record, and have a seal; and each judge of probate shall keep a true and fair record of each order, sentence and decree of the court, and of all wills therein, with the probate thereof, of all letters testamentary and of administration, and of all other things proper to be recorded; and, on the legal fees being paid shall give true copies of the files, records and proceedings of the court, certified by him under the seal of such court; and further, the judge of probate for each county shall have power to take the probate of wills, and to grant administration of the estate of all persons deceased, who were at the time of their decease inhabitants of, or residents in the same county, and of all who shall die without the state, leaving any estate within such county to be administered; and to appoint guardians to minors and others in the cases prescribed by law and shall have and exercise all such other powers and jurisdiction as are or may be conferred by law. §304. Nature of Probate Jurisdiction. Courts of probate, it may be said, exercise jurisdiction 3. C. L. '97 §§§646, 647, 650. over the estates of deceased persons and they collect the assets, allow claims, direct payments and distribution, of the property to legatees or others who are entitled thereto, and, in general, they do everything to a final settlement of the affairs of the deceased, and the claims of creditors against the estate. Thus, the court of probate has general jurisdiction in matters testamentary and matters incidental thereto as well as other matters of probate*, and where no fatal defect appears on the face of the proceedings, its action in such matters is not void. It may be reversible on appeal, but it must stand if not appealed from. "Courts of probate," said Justice Cooley", "are courts of record, being declared to be such by the constitution, but they are not courts of law according to the ordinary use of the term. They derive their origin and jurisdiction from a source altogether distinct from the common law, and they exercise no functions peculiar to that system. Parties can not litigate questions. of fact in them, except in the instance of the probate of wills, or when the power of appointment is to be exercised, and then no issues are joined by pleadings, no juries are known, and they render no judgment-their determinations being called orders, sentences, or decrees-and upon summary inquiry, with or without notice, as the case may be. If questions of fact, such as are the subjects of litigation at law, are to be determined within their jurisdiction; as, for instance, the allowance 4. People v. Wayne Circuit Court, 11 Mich. 593; Schlee v. Darrow's Estate, 65 Mich. 373, 132 N. W. 717; Wilkinson v. Connaty, 65 Mich. 627, 32 N. W. 841; Morford v. Dieffenbacker, 54 Mich. 605, 20 N. W. 600; Alex ander v. Riel, 52 Mich. 451, 18 N. W. 214; Church v. Holcomb, 45 Mich. 29, 7 N. W. 167. 5. Church V. Holcomb, Mich. 29. 7 N. W. 167. 6. 225. 45 Holbrook v. Cook, 5 Mich. or disallowance of claims against an estate; they are generally determined through the action of commissioners appointed by the court, and from their decision no appeal lies to the probate, but does to the circuit court. The order and decree of these courts are subject to review only in virtue of statutory provisions, and not of their inferior character (for, primarily, they are not courts of inferior jurisdiction, as justices' and circuit courts are); and the statute confers the power of review only upon the circuit courts, through an appeal, and thereby confers upon such courts superior jurisdiction." Under the constitution, the probate court is, for most purposes, at least, a prerogative, and not a judicial, court, and has no jurisdiction over persons or property, except in such proceedings as relate to the estates of deceased persons, or those under disability and liable to wardship'. It is manifest that, strictly speaking, proceedings in probate and administration are not suits or actions, but they are of a mixed character and susceptible of institution and management upon altogether different principles than such as govern at common law. They may be brought and promoted by those who have no pecuniary interests, or by persons on whom the law, on account of the circumstances, shall have cast the duty; or they may, in particular instances, be initiated by the court. They partake of the proceedings in rem, and are often governed by the same principles. They may and often do bind persons not named in the records. §305. The Power of the Court as to Extent. The courts of probate have exclusive jurisdiction to grant 7. Railroad Co. v. Chesebro, 74 Mich. 466, 42 N. W. 66. 8. Allison v. Smith, 16 Mich. 405. administration upon the estates of deceased persons within the States, and for this purpose to allow probates of the wills of persons dying testate abroad, as well as at home. It is apparent then that if the jurisdiction attaches, all the incidents relating thereto attach, and if full proof of the execution of a will is required, the court is privileged or has power to inquire into the amount or value of the disposition, and furthermore it has the power to construe wills10. But the court has no power to vacate an order admitting a will to probate11, nor set aside its own adjudications and order a rehearing12, for it is plain that the probate of wills under the statutes13 is merely a part of the proceedings to administer the estates of deceased persons11; nor in probating a will, has the court power to divest or decide on rights of property vested under proceedings valid on their face15. Furthermore, the probate court has no power to decide whether mutual wills form a contract and whether the maker of one has by revoking it estopped himself from claiming under the other16. It is essential to remember that probate courts derive none of their power from the common law, but the authority for all their acts must be found in the statute17. §306. Equity Jurisdiction in Probate Courts. It is well settled that courts of chancery have only jur |