In reference to the possession of the conflict area by the Flagstaff Company, the record discloses "that the Flagstaff mine had been owned by the Flagstaff Silver Mining Company, of Utah, since February, in the year 1872;" that a claim 2,000 feet in length, 1,000 feet northerly of discovery, had been patented to the company's grantors, and conveyed to it the surface lines of the patent, embracing only about 100 feet on the length of the lode; that claiming, notwithstanding the course of the patent lines, that it had a right to follow the lode for the length described by the patent, the company and its grantors had extended its works beyond the lines covered by the patent, with and along the course of the vein under-ground, beyond that portion the apex of which crops out in the ground in dispute between the plaintiff and defendants; that drifts and levels. driven from the discovery shaft and main working shaft of the Flagstaff mine had penetrated the hill along the vein on its dip and strike to the northerly, and, at the time of the location of both the Nabob and Virginia claims, was used, held, and occupied at various depths by those having possession in behalf of said company, and that the workmen and miners in both Virginia and Nabob, before reaching the depth of 100 feet, distinctly heard the workmen employed in the Flagstaff mine, and the mining works were actually connected at different points under-ground; that the Virginia tunnel, indicated on the map of the under-ground works, was connected with the old Flagstaff works at a point about 140 feet in depth, and the Nabob at other points not exceeding that; that the vein was occupied on its course and dip by said Flagstaff Company to a distance north-west exceeding the limits of the ground in dispute, said occupation being entirely under ground and not visible on the surface." In other words, and in brief, the patent of the Flagstaff Company embraced only about 100 feet on the length or course of the vein, this claim having been laid and patented across the vein, and not along on its

course.

According to a decision of this court in a case against this same company, involving its right to extend its workings beyond the side. lines of its claim, and which was affirmed by the supreme court of the United States, the side lines of the Flagstaff location are in effect the end lines of this claim on the course of the vein. Flagstaff Silver Mining Co. v. Tarbet, 98 U. S. 463. The Flagstaff Company were, according to the facts, secret under-ground trespassers in exploring and working beyond the side line of this location, and under the surface ground in dispute. The possession of a vein recognized by the mining laws, and to which protection is given, is by one who holds. the surface where the vein makes its apex. The location of a vein or lode made upon the surface where the vein or lode finds its apex, will not be defeated by the secret under-ground workings and possession by parties having no possession of or right to the surface embracing it. The secret under-ground trespass of the Flagstaff Com

pany does not affect the rights of either the appellant or respondents. It is conceded by the respondents, and it is doubtless true, that, as between two locators, and as affecting their rights only, one cannot locate ground of which the other is in actual possession under claim or color of right, because such ground would not be vacant and unoccupied. This would affect the appellant's right to recover for the conflict area in dispute, it being an undisputed fact that, at the very time when the Virginia was located by him, the respondents, the locators of the Nabob, were in actual possession, sinking their incline shaft, and occupying a shanty on the ground.

It is further contended on the part of the appellant that the judgment cannot be sustained because there is no finding of fact that the defendants were in possession of the property in controversy at the time of filing the answer, or at the commencement of the action. He claims that this is a jurisdictional question, and may be taken advantage of at any time. It is difficult to conceive how the want of possession by the defendants can be a jurisdictional question, as affecting their right to a judgment in their favor, if the plaintiff, who had inaugurated the suit against them, failed to make out his case. The judgment settled the rights of the defendants to the conflict area only as against the plaintiff. There being no other adverse party to the record, no one else is bound by it; and, besides, the facts as found by the court establish the defendants' right to the possession, and that they had done all that is required by law in order to inaugurate a title to and hold a valid mining claim, and that they were constructively, at least, if not actually, in possession.

The judgment is affirmed.

(3 N. M. [Gild.] 89)

SUPREME COURT OF NEW MEXICO.

CHAVES V. PEREA, Adm'r, etc.

January Term, 1884.

An appeal will lie from the probate court to the district court, but the latter cannot take jurisdiction, (except for the purpose of dismissal,) unless the inferior court has acquired jurisdiction.

Money claims against estates of intestates must be allowed, if at all, upon legal evidence sustaining the same; such evidence must be passed upon at a regular session of the probate court, and the administrator must be present or have opportu nity to do so, by being cited to appear.

The probate court has jurisdiction of personal estates only; the legal title vests in the administrator, and all proceedings should be instituted against him. Method and requirements of appeals from the probate court defined.

Fiske & Warren, for appellant.

C. C. McComas and Catron & Thornton, for appellee.

BRISTOL, J. This case originated in the probate court of Bernalillo county, in the Second judicial district. It was appealed therefrom to the district court of that county, where the appeal was dismissed for irregularity, and it is here on appeal from such final determination thereof in the court below. The proceeding was instituted in the probate court for the allowance of a claim or account against the estate of Salvador Armijo, deceased, in favor of Chaves, the plaintiff below, and appellant here. The account is as follows:

ALBUQUERQUE, N. M., June 9, 1879.

The estate of Salvador Armijo, to J. Francisco Chaves,

April 1.

To two years' legal services @ $250 00 per annum
as per contract,

500 00

1878.

It seems from the record that this account, in the first instance, had been presented to the defendant below, Jesus Ma. Perea, who was

the administrator of the estate of the deceased Armijo, who had refused to allow or pay the same. The account thereupon was presented to the probate court at a regular term thereof, on July 7, 1879. That court made an order embracing this and other claims against the estate, to the effect that "they not having been approved by the administrator, proof shall be introduced to substantiate such claims at a regular term." The record of the probate court further shows that thereafter, at a regular term held September 22, 1879, this account was called up for hearing by the plaintiff, and after hearing arguments on his behalf the claim was disallowed, and the entire account rejected. It does not appear from the record that any evidence was offered by plaintiff, or received by the court; but instead thereof the case was disposed of in the absence of the administrator on arguments for the plaintiff. The record not only fails to show the appearance of the administrator, but is also silent as to whether he had even been cited to appear, so as to confer jurisdiction to entertain the case. The probate court, having only an inferior and limited jurisdiction, conferred by express provisions of statute, jurisdiction must appear affirmatively upon its record. It cannot be presumed. The proceeding was in no sense a suit against the administrator to recover judgment for the amount of the claim. It was simply an application to the probate court to admit or allow the claim, as authority, perhaps, to the administrator to pay it, and to exempt him from personal liability if he did pay it. A suit, no doubt, could have been instituted in the district court to recover judgment thereon, wherein all issues of fact could have been litigated and settled whether the probate court had passed upon the question of allowing the claim or not, there being no statute requiring such allowance as a condition precedent to bringing an action.

For the purpose of the proceeding involved in the case at bar, however, the probate court had exclusive original jurisdiction, and while an appeal would lie from a final determination thereof to the chancery side of the district court, yet the latter court could not take jurisdiction except for the purpose of dismissal unless the inferior court had acquired jurisdiction. The provision of our statutes under which the probate court was authorized to act in the premises is as follows: "It shall be the duty of the probate judge to admit all claims against the estate if properly sustained by legal evidence: provided, the administrator be present at court to settle the said claims if admitted."

same.

Several legal propositions are sustained under this statute: First, money demands upon unpaid accounts against the estates of intestates must be allowed, if at all, upon legal evidence sustaining the Second, such evidence must be taken and the claim passed upon at a regular session of the probate court; and, third, the administrator of the estate against whom the claim is made must either be present in court while the evidence is being taken and the claim passed upon, or at least he must have had an opportunity to be present and to

be heard by having a citation to appear served on him. In no other way could the probate court have acquired jurisdiction to act in the premises. Our crude and inefficient administration laws do not prescribe the practice to be pursued in this as in a multitude of other cases that may arise; yet it is obvious from the very nature of the proceeding and the right to be passed upon that the administrator should have an opportunity to be present in person or by counsel.

Probate courts, under the laws of this territory, only have jurisdiction over the personal estates of intestates. The legal title to any such personal estate is vested in the administrator, in the nature of a trust, for the settlement of the estate. Hence, it follows that all proceedings, whether by suit to recover judgment or a proceeding for the allowance of claims which have for their object the payment thereof out of such personal estate, should be instituted against the administrator, and in such a manner as will give him his day in court, he being the only person through whom a defense can be interposed. The administrator in this case not having been present at the time appellant's claim was passed upon by the probate court and rejected, nor having been cited to appear, that court acquired no jurisdiction, and its determination of the case is void and of no effect whatever. And if an appeal had been regularly taken to the district court, there would have been nothing to do except to dismiss the entire proceeding for want of jurisdiction. This proceeding could not be pleaded in bar of another, and, unless cut off by some statute of limitation, there is nothing to prevent a proceeding de novo, in the regular way, for the same purpose.

That irregularities should occur in the proceedings of probate courts and in the acts of administrators, is not at all surprising under the present condition of the law. No state or territory, it may be presumed, anywhere within the jurisdiction of the United States, has such a lame and inefficient code of administration laws as that which obtains in New Mexico. Judges of probate are elected to office and invested with complicated powers and duties touching the probate of wills, letters of administration, accounts against estates, accounts of executors and administrators, and hearing and determining rights in regard to the same. Administrators also are appointed and charged with the exercise of various powers and duties respecting the settlement of estates. But there are scarcely any laws upon our statute book prescribing the details of the duties of either, or the specific modes in which they may be performed. That valuable estates should melt away and mysteriously disappear, fictitious claims allowed, honest debts left unpaid, and beneficiaries never receive what they are entitled to, in numerous instances, under our crude system of administering estates, is rather to be expected than wondered at. All this may happen without imputing any intentional fraud to these officials. It is the fault, mainly, of an imperfect system.