« ΠροηγούμενηΣυνέχεια »
English Colonies of this country the forms and principles of the Ecclesiastical Courts were continued, but all proceedings in testamentary cases were conducted in the regular civil tribunals. In the Dutch Colonies, on the other hand, the jurisdiction was commonly exercised according to Roman Law, by a special court established for that purpose, composed at first of members of the Colonial Council, but later on of the burgomaster and schepens. Space will not permit us to follow in detail the various changes made in the jurisdiction exercised by the early colonial tribunals down to the Revolution, but by whatever name the court might from time to time have been known and wherever the English rule existed, the precedents and principles of the Spiritual Courts of England prevailed. In 1692 the power to grant probate and to issue letters of administration was lodged in the governor of the Province of New York or his delegate, under the seal of the prerogative office, but where the estate was under £50, proof of the will might be made in the Courts of Common Pleas, and certified to the governor. About 1746 the governor's delegates began to apply to themselves the title of surrogate, and were so designated thereafter. In 1778 the prerogative court was abolished and its testamentary jurisdiction was transferred to the court of probate. There it remained until 1823, when it passed to the Court of Chancery. In 1847 the legislature of New York passed an act regulating the proof of wills and other matters in surrogates' courts. These courts have always been regarded as possessing very limited powers, in fact, only those expressly, or by necessary implication, given by the statute, and not by any means the jurisdiction of the Court of Chancery which preceded them. The tendency has been, however, to enlarge rather than to restrict them, and in 1914 they were vested with certain equity powers with which it was found necessary to clothe them, in order to enable them to completely exercise the statutory jurisdiction expressly given. The name surrogate is to be found in other states than New York, but in most if not all such cases, he occupies a position which is not much more than that of a clerk to the Orphan's Court. In other states, courts having jurisdiction in testamentary matters are known as probate courts. Usually all courts of this kind are County Courts, but in a few cases the state is divided into what are called probate districts, each district being provided with a “probate judge."
Where probate to be applied for.
Usually a will is presented for probate at the place of the testator's residence, not only from motives of convenience, but also because the powers and jurisdiction of the probate court respecting that estate are more extensive than if the application were to be made elsewhere. In such case the letters testamentary (certificate of authority issued to the executors) granted by the court are known as principal or domiciliary letters, and while they technically confine the executor's powers to the geographical limits of the court's jurisdiction, as a matter of experience these domiciliary letters are unofficially recognized elsewhere, and enable the executor to collect property and receive payment of debts outside the state of his appointment.
It frequently proves desirable, however, where property of the testator is in a state other than that of his residence, to receive authority to act from the court where the property is. This may be done (if the property is personal only) by simply filing certified copies of the will, of the testimony of the witnesses, and of the domestic letters, in the foreign probate court. Thereupon that court will issue what are called ancillary, that is, additional or supplemental, letters. They are purely local and confer no extra-territorial authority.
Where such foreign property is both real and personal, or real only, it is sometimes advisable to apply to the local court for original probate,
that is, to prove the will in the same way as was done in the first instance at the testator's residence, by the production of the original will and taking the testimony of the witnesses. Letters testamentary will then be granted, but they are nevertheless ancillary in character and local in authority. Sometimes a will is proved in this way in a foreign court, although it may never have been probated at the place of the testator's residence at all; as, for instance, where he leaves no property of any kind at his domicile, and the witnesses reside elsewhere.
46. What wills the probate court may admit.
It is wholly unnecessary, nor would it be profitable, to enter upon a review of the powers granted by the various states to their probate courts. It is safe to say, however, that every state has authorized its courts to probate a will that is executed according to its own laws, or, if relating only to personal property, according to the laws of the foreign state or country where the testator resides. It follows, therefore, that while the statute requires the performance of certain formalities in the execution of wills, it is not in every case necessary that these formalities shall have been observed to entitle the will to probate. Were it so necessary no foreign will, unless it happened to be executed according to domestic law, could be proved here. Indeed, in New York, by a recent statute, a will executed without the state in the mode prescribed by the law, either of the place where executed or of the testator's domicile, is deemed to have been legally executed, provided it be in writing and subscribed by the testator, and may be admitted to probate.
But the authority of probate courts to establish wills of non-residents is usually further limited. In order to entitle such wills to probate, the testator must have left real property within the jurisdiction of the court, or else personal property which either was within such jurisdiction at the testator's death, or which came there after his death, no matter where such death occurred. The will of a non-resident who has no property in the state where the application is made must be denied probate.
Where one, having property in separate states or countries, makes separate wills disposing of the same, the courts of the testator's domicile have no jurisdiction to probate the foreign will, unless such will is dependent in some way on the domestic will; nor has the foreign court jurisdiction to probate the will of testator's domicile, unless it relates to or depends on the foreign will.
From time to time there has been more or less