The appointment of a testamentary guardian has the effect of preventing the appointment of any other guardian during the infant's minority, unless he resigns or is removed for cause.

40. Interfering with decedent's property before probate.

Before a will has been admitted to probate no one but the executor has any right to take possession or in any way interfere with the testator's property, and if he does so, he is liable for the value of any property taken, or received, and for all damages which his acts have caused. Even the executor named in the will is greatly restricted. He has no power to dispose of any of the property, except for the single purpose of discharging the expense of the testator's funeral and burial. yond this he may not interfere with the property further than may be necessary for its preservation.

41. Why probate is necessary.

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So far as personal property is concerned, it is a very generally accepted principle that the executor's title is derived directly from the will, and not from the probate, or from the letters testamentary issued to him by the court. The will is the foundation and the letters the evidence of that title. But though that title be so vested, the

executor, as we have just seen, cannot exercise all his rights and privileges pertaining thereto, until his appointment has been recognized by the Now a will, unlike a deed, does

proper tribunal. not prove itself. If a deed appears on its face to have been signed by the grantor, and to have been acknowledged before a notary, it is presumed to be valid, and will be accepted for record without any further proof of validity. But however much a will may satisfy the practiced eye in respect to the formalities of its execution, its effectiveness as a medium of transfer cannot be recognized until affirmative evidence has been produced as to the signing and publication by the testator, and the subscription by the witnesses. This is the probate of the will, and upon it depends the authority of the executor to act.

As to real property, on the other hand, probate of the will is not so necessary. In fact, so far as the passing of title to the devisee is concerned, it is not necessary at all. Nevertheless, probate, though not essential, is desirable. Whenever the devisee, or anyone claiming under him, is called upon to establish or defend his title, he can only do so by proof of the will. While this can be done in any court or proceeding wherein the title is questioned, the evidence may then be lost and the witnesses unavailable. Probate of the

will would have relieved all such embarrassment, for it would have at once presumptively shown not only the due execution of the will, but the validity of the devise. And there is another reason why probate of a will of real property is advisable. If the heir of one of the heirs (who would have inherited the land in case there had been no will) should sell it to a stranger buying it in good faith and paying value for it, such sale could not be defeated, unless the will be proved in the proper court within a specified time after the testator's death.

42. Duty to produce will for probate.

In the olden times it was the custom for the family solicitor to call the members of the testator's family together, to formally open the will, and to make known its contents. This was intended not only as an opportunity to inform the beneficiaries of the provisions made for them, but also to enable those not mentioned to express their acquiescence or dissent. But our times are more prosaic and unconventional, and now nothing more formal is required than the mere delivery of the will by its custodian to the executor or to the court of the testator's residence. In many of the states this delivery is obligatory, and in New York a statute provides a proceeding against anyone

who is suspected of concealing a will, requiring his examination, to the end that the will may be produced and filed in the proper office. And any person who steals or for any fraudulent purpose destroys, mutilates or conceals a will, codicil or other testamentary instrument is guilty of a felony.

Frequently a testator, after executing his will, places it in his safe deposit box. This may be a salutary measure, but usually gives rise to much. inconvenience. The safedeposit company is under no duty to produce the will, even upon demand, for the document is not in its possession nor under its control. In such cases the court usually makes an order authorizing the deposit company to permit a search of the decedent's box to be made, and if a will be found to file the same with the clerk.

43. In what courts wills are proved.

As is known to almost everyone, application for the proof of a will is usually made to the probate court, either at the place of the testator's residence, or where his property is located. Indeed they are the only courts which have the power to issue letters testamentary to an executor.

But under certain circumstances the Superior Courts will undertake the establishment of wills,

and then direct them to be recorded in the office of the probate court, and letters testamentary to be issued by that court. In New York this matter is regulated by statute, which permits an action in the Supreme Court to establish (1) a will of real or personal property, which might be proved in the Surrogate's Court, but the original is without the state and cannot be procured, (2) a lost or destroyed will, and (3) a will executed by a non-resident according to the laws of his own place of residence, and which cannot be proved in the Surrogate's Court.

While Federal Courts have a certain amount of jurisdiction in matters relating to wills, it is doubtful whether it would embrace an original proceeding of probate.

44. Probate courts.

Our present courts of probate have a very ancient lineage. In the early days of England all matters relating to the proof of wills and the administration of decedents' estates were within the exclusive jurisdiction of the Ecclesiastical Courts of the realm, which was customarily exercised by the Bishop through his delegate or surrogate. This jurisdiction continued in England, though restricted from time to time, until long after the American Revolution. In the