isdiction in those cases in which an adequate remedy does not exist in the probate court, but nevertheless, there is little doubt that a large portion of the old equity jurisdiction has been vested in this court18. Courts of probate stand in the same relation to persons under guardianship as did courts of chancery under the English system of jurisprudence1o, and this jurisdiction was conferred by law with such of its incidents as appertain thereto20, but probate courts have no power to order an accounting by a trustee in a will21, and there are cases in which it is not necessary to apply to a court of chancery for an order to sell land22. The rule that in cases of fraud courts of equity have concurrent jurisdiction with courts of law does not apply to cases for impeachment of a will for fraud23.

§307. Jurisdiction and Proceedings.

The rule is well settled by international law that the jurisdiction to determine the validity or invalidity of wills belongs to the courts of the place of the domicile of the testator24. It is apparent that under the general language of the statute25 the jurisdiction extends to the probate of wills in general, to lost or destroyed ones, to settlements of estates26, to the trying and determination of the validity of wills, relating to personal and real estate27, and to their

18. People v. Judge, 11 Mich. 404.

19. Andrew's Estate, 92 Mich. 449, 52 N. W. 743.

20. Taff v. Hosmer, 14 Mich. 256.

21. McBride v. McIntyre, 91 Mich. 408, 51 N. W. 1113.

22. Moore's Appeal, 84 Mich. 474.

23. Griffis v. Stoddard, 2 Mich. N. P. 37.

24. Scripps v. Wayne Probate Judge, 131 Mich. 265, 100 Am. St. Rep. 614, 90 N. W. 1061.

25. C. L. '97, $S650, 651. 26. Ewing V. McIntyre, 133 Mich. 459, 95 N. W. 540.

27. Griffis v. Stoddard, 2 Mich. N. P. 37.

interpretation and construction28. If there is a law authorizing a probate judge to entertain a petition for the allowance of a will, he should do so29.

§308. Delay as to Probate.

A bill brought by an heir, after learning of the probate of a will which was probated twenty years ago, to set aside the will on the ground that the testator was incompetent, was barred on account of laches. Such a bill should be brought within a reasonable time, for "sound public policy and a just regard for the stability of private rights, require that the solemn judgments and decrees of courts, affecting the rights of property shall not be lightly disturbed, nor, without the strongest reason, allowed to be impeached, after any considerable time, during which the parties have been allowed to rely upon them"’30.

§309. Jurisdiction Necessary to Conclusiveness in Order to Make the Probate of a Will.

In order to make the probate of a will conclusive there must have been jurisdiction in the court to have granted probate. The maxim Nemo es haeres viventis, i. e., that the living can have no heirs is as well settled by statute31 as by common law. Although a statute was passed providing for the ante mortem probate of wills, the court decided that the probate of a will under the statute was inoperative and void for want of jurisdiction32.

§310. Necessity of Probate.

The statutes have abolished the distinction as to probate between wills passing real property and wills passing personalty in that they make no distinction between kinds of wills33

§311. Delegation of Power.

The common law rule to delegate the power of appointment has not been abrogated by statute. Thus, where a clause in a will confers upon the judge of probate the power of appointing an executor, such appointment when made by the judge is valid34.

§312. Who May Propound a Will for Probate.

Any person who is interested in having the will admitted to probate may propound it. It is apparent that any person interested means any person who has a beneficial interest, such as devisees and legatees35. A guardian has such an interest as will entitle him to petition for the probate of a will in favor of his ward36, and likewise the interest of a widow is such as to entitle her to petition for the probate of a will37.

$313. Probate of Will.

It is manifest that the original probate of a will must

33. Allison v. Smith, 16 Mich. 405.

34. Brown v. Just, 118 Mich. 678, 77 N. W. 203.

35. Mower v. Verflanke, 105 Mich. 398, 63 N. W. 302; Clow v. Plummer, 85 Mich. 550, 48 N.

W. 795.

36. Munford v. Diefenbach, 54 Mich. 236, 20 N. W. 600.

37. Lloyd v. Judge, 56 Mich. 236, 23 N. W. 28, 56 Am. Rep. 378.

take place in the court that has jurisdiction over the estate38. The object of the proceedings which are in the nature of actions in rem is to establish the will and to have the status of an estate adjudicated as well as the interests of all the parties concerned39. Whenever the paper propounded will have been subjected to every kind and degree of proof on probate which is necessary and essential according to its provisions, and it has been regularly adjudicated upon, its character as a testamentary instrument fixed, the will is then adjudged, established, and it becomes fully operative as a will40.

$314. The Probate of Will Relates Back to Death of

Testator.

The probate of a will affirms the title of the beneficiary under it from the time of the death, and the probate relates back so as to make valid whatever has been done previously, which, under the will after probate, the beneficiary would have had a right to do11. Thus, a will which has not yet been proved does not prevent a devisee of land or a party claiming under him from bringing ejectment, for a devisee may take his estate as of the death of the testator, except so far as otherwise provided by statute12. A residuary legatee of lands holds title from the time of the probate of the will, but subject to the antecedent legatees. If the land is not taken by the executors for the purpose of

38. Lloyd v. Judge, 56 Mich. 236, 23 N. W. 28, 56 Am. Rep. 378.

39. Steven v. Hope, 52 Mich. 68, 17 N. W. 698; Fraser V. Judge, 39 Mich. 138, Allison v. Smith, 16 Mich. 405.

40. Allison v. Smith, 16 Mich. 405.

41. Sutphen v. Ellis, 35 Mich. 446; Richards v. Pierce, 44 Mich. 444, 7 N. W. 54, Gray v. Froules, 86 Mich. 382, 49 N. W. 130.

42. Richards V. Pierce, Mich. 444, 7 N. W. 54.

44

administration, the residuary legatee may have defended possession from the time the will is probated13.

$315. The Effect of an Unprobated Will.

It is apparent that a will, until requisite adjudication upon probate is had, remains incomplete as an adjudged testamentary paper without any value as a will, but the lack of probate does not make it void. Where a person is named as a legatee in a will, he does not become a legatee until the validity of a will is determined15, but where a will has not yet been proved, a devisee of lands or a party claiming under him is not prevented from bringing ejectment46.

§316. The Conclusiveness of the Probate of a Will.

"The importance," said Chief Justice Shaw, "of making proof of a will, once for all and for all purposes, must be obvious. It determines the status, if it may be so called -the condition of a deceased person's estate. It must be settled as an estate testate or intestate. The establishment of the one necessarily excludes the other"47.

§317. The Revocation of Probate.

The revocation of probate is not provided for by statutes, or its effect upon existing rights. Neither is there any statute providing for cases where a will, claimed to be later

43. Chapman V. Craig, 37 Mich. 370.

44. Allison v. Smith, 16 Mich. 405.

45. McFarlane V. Clark, 39 Mich. 44.

46. Richards V. Pierce, 44 Mich. 444, 7 N. W. 54.

47. Allison v. Smith, 16 Mich. 405. See Besancon v. Brownson, 39 Mich. 388.