probate

By the common law, the exclusive right to entertain jurisdiction over wills of personal estate, belongs to the ecclesiastical Courts; and before any testamentary paper of personalty can be admitted in evidence, it must receive probate in those Courts... nothing but the probate or letters of administration, with the will annexed, are legal evidence of the will, in all questions respecting personalty.

Originally, relating to proof; afterwards, relating to the proof of wills. In American law, now a general name or term used to include all matters of which probate courts have jurisdiction. Johnson v. Harrison, 47 Minn. 575, 50 N. W. 923, 28 Am. St. Rep. 382.

The act or process of proving a will. The proof before an ordinary, surrogate, register or other duly authorized person that a document produced before him for official recognition and registration, and alleged to be the last will and testament of a certain deceased person, ls such in reality. The copy of the will, made out in parchment or due form, under the seal of the ordinary or court of probate, and usually delivered to the executor or administrator of the deceased, together with a certificate of the will's having been proved, ls also commonly called the "probate." In the canon law, "probate" consisted of probatio, the proof of the will by the executor, and approbatio, the approbation given by the ecclesiastical judge to the proof. 4 Reeve, Eng. Law, 77. And sce In re Spiegelhalter's Will, 1 Pennewill (Del.) 5, 39 Atl. 465; Mc-Cay v. Clayton, 119 Pq. 133, 12 Atl. 860; Pettit v. Black, 13 Neb. 142, 12 N. W. 841; Reno v. McCully, 65 Iowa, 629, 22 N. W. 902; Appeal of Dawley, 16 R. I. 694, 19 Atl. 248.

— Common and solemn form of probate. In English law, there are two kinds of probate, namely, probate in common form, and probate in solemn form. Probate in common form is granted in the registry, without any formal procedure in court, upon an ex parte application made by the executor. Probate in solemn form is in the nature of a final decree pronounced in open court, nil parties interested having been duly cited. The difference between the effect of probate in common form and probate in solemn form is that probate in common form la revocable, whereas probate in solemn form is irrevocable, as against all persons who have been cited to see the proceedings, or who can be proved to have been privy to those proceedings, except in the case where a will of subsequent date is discovered, in which case probate of an earlier will, though granted in solemn form, would be revoked. Coote, Prob. Pr. (5th Ed.) 237-239; Mozley & Whitley. And see Luther v. Luther, 122 III. 558, 13 N. Et 166. The term ls used, particularly In Pennsylvania, but not In a strictly technical dense. to designate the proof of his claim made by a non-resident plaintiff (when the same ls on book-account, promissory note, etc.) who swears to the correctness and Justness of the same, and that it is due, before a notary or other officer in hls own state; also of the copy or statement of such claim filed in court, with the jurat of such notary attached.

— Probate bond. One required by law to be given to the probate court or judge, as incidental to proceedings in such courts, such as the bonds of executors, administrators, and guardians. See Thomas v. White, 12 Mass. 367.

— Probate code. The body or system of law relating to all matters of which probate couris have jurisdiction. Johnson v. Harrison, 47 Minn. 575, 50 N. W. 923, 28 Am. St. Rep. 382.

— Probate court. See Court of Probate.

— Probate, divorce, and admiralty division. That division of the English high court of justice which exercises jurisdiction in matters formerly within the exclusive cognizance of the court of probate, the court for divorce and matrimonial causes, and the high court of admiralty. (Judicature Act 1873, § 34.) It consists of two judges, one of whom is called the "President." The existing judges are the judge of the old probate and divorce courts, who is president of the division, and the judge of the old admiralty court, and of a number of registrars. Sweet.

— Probate dnty. A tax laid by government on every will admitted to probate, and payable out of the decedent's estate.

— Probate homestead. See HOMESTEAD.

— Probate judge. The judge of a court of probate.

Official proof, particularly the proof of a will, made before the ordinary, surrogate or probate judge; the copy of a will which has been proved, made out under the seal of the ordinaiy, etc., and delivered to the executor with a certificate of its having been proved; all the proceedings in proving a will, including the proof itself, the copy of the will and certificate. Probate court: a court having jurisdiction over the estates of deceased persons, including whatever may be necessary to a final settlement of the same. v. Surrogate.

* Formal, ofl Bcial or legal proof: as, the probate of (and to probate) a claim, a will. When a will is proved, the original is deposited in the registry, and a copy, made under the seal of the register, is delivered to the executor or administrator, along with a certificate of its having been proven: all which together is styled " the probate." 5 Strictly used, relates to the proof of a will before an officer or tribunal having jurisdiction to determine the question of itsvahdity. In common usage, however, often refers to the proceeding incident to the administration 1 Honesty v. Commonwealth, 81 Va. 394 (1886). ! Brown v. Atlanta, &c. B. Co., 19 S. C. 59 (1882). » New York, &c. E. Co. v. New Britaui, 49 Conn. 40 (1881). and settlement of the estates of decedents, and is, therefore, sometimes so used in statutes.i Federal courts have jurisdiction in a controversy between parties of different States respecting the validity, construction, or enforcement of a decree admitting a will to probate; it is in the nature of a proceeding in rem.^ Jurisdiction as to wills, and their probate as such, is neither included nor excepted out of the grant of the judicial power ^ the Federal courts. So far as it is ex parte and merely administrative, it is not conferred, and cannot be exercised at all, until, in a case at law or in equity, its exercise becomes necessary to settle a controversy as to which those courts have jurisdiction by reason of citizenship.'' A probate is conclusive until revoked.' Generally speaking, a court of equity will not entertain a bill to set aside the probate of a will. Succession to the estate is in the nature of a proceeding in rem, in which all who have any interest are parties, and are concluded as upon a res adjudicata by the decision of the court, which generally has ample powers of process and investigafion.* A statute which provides for an ante mortem probate is inoperative and void." Coiirt of probate. A court exercising jurisdiction over the estates of deceased persons, possessing, as to personal assets, nearly all the powers formerly exercised by the courts of chancery and the ecclesiastical courts of England. Such courts collect the assets, allow claims, direct payments and distribution of the property to legatees or others entitled, and, generally, do everything essential to a final settlement of the affairs of the deceased, and the claims of creditors against the estate. Other names are "orphans'" and "surrogates'" courts.' Such a court has power to administer the equities directly involved in the matter before it.s See Res, 2.

and the Divorce Court, are united Loudon Court of Bankruptcy (Court, dent court, though the office of chief judge by a judge of the High Court of Justice decisions of the court are subject to of Appeal (Court, 26). This Supreme sists of two divisions, one to be called