Probate Of A Will

The proof before an officer or court authorized by law that an instrument offered to be proved or recorded is the last will and testament of the_ deceased person whose testamentary act it is alleged to be. In some jurisdictions, the term is loosely used to denote the proof of claim against estates, etc. PROBATIO (Lat.) Proof; more particularly direct, as distinguished from indirect, or circumstantial, evidence.

The proof before an officer authorized by law that an instrument offered to he proved or registered is the last will and testament of the deceased person whose testamentary act it is alleged to be. Jurisdiction. In England, the ecclesiastical courts were the only tribunals in which, except by special prescription, the validity of wills of personal estate could be established or disputed. Hence in all courts, the seal of the ecclesiastical court was conclusive evidence of the factum of a will of personalty; from which it followed that an executor could not assert or rely on his authority in any other court, without showing that bo had previously established it in the spiritual court, — the usual proof of which was the production of a copy of the will by which he was appointed, certified under the seal of the ordinary. This was usually called the probate. The probate of a will was conclusive as to personalty; but not as to realty, which could only be settled by an issue out of chancery or a trial at law; 4 Kent 510. The ecclesiastical courts had no jurisdiction of devises of lands; and in a trial at common law or in equity the probate of a will is not admissible as evidence, but the original will must be produced, and proved the same as any other disputed instrument. This rule has been modified by statute in some of the states. In New York, the record, when the will is proved by the subscribing witnesses, is prima facie evidence, and provision is made for perpetuating the evidence. See Jackson v. ITasbrouck, 12 Johns. (N. Y.) 192. In Massachusetts, North Carolina, and Michigan the probate is conclusive of its validity, and a will cannot be used in evidence till proved; Waters v. Stiekney, 12 Allen (Mass.) 1, 90 Am. Dec. 122; 2 Mich. Comp. Laws (1871) 1375; Battle, Rev. 849. In Pennsylvania, the probate was held not conclusive as to lands, and, although not allowed by tile register’s court, it might be read in evidence; Smith v. Bon. sail, 5 Rawle (Pa.) 80; but see Mc Cny v. 01 a yton, 119 Pa. 138, 12 Atl. 860; but it becomes conclusive as to realty, unless within five years from probate those interested shall contest its validity. In South Carolina the will must be proved de novo in the court of common pleas, though allowed in the ordinary; Gibson v. Brown, 1 N. & McC. (S. C.) 326. In New Jersey, probate is necessary, but it is not conclusive; Denn v. Allen, 2 N. J. L. 42; except in actions not commenced within seven years from the probate;, N. J. The effect of the probate in this country, and the rules in regard to jurisdiction, are generally the same as in England; but, as no ecclesiastical courts exist in the United States, probate is granted by some judicial officer, who performs the part of the ordinary in England, but generally with more ample powers in relation to the administration of the estate. See Surrogate; Letters Testamentary. The proof of the will is a judicial proceeding, and the probate a judicial act. The party propounding the instrument is termed the proponent, and the party disputing, the contestant. In England, proof ex parte was called probate in common form, and proof on notice to the next of kin, proof in solemn form. In the United States, generally speaking, proofs are not taken until citation or notice has been issued by the judge to all the parties interested to attend. On the return of the citation, the witnesses are examined, and the trial proceeds before the court. If the judge, when both parties have been heard, decides in favor of the will, he admits it to probate; if against the will he rejects it. In Pennsylvania no citation is required. More than one instrument may be proved; and where the contents of two or more instruments are not wholly inconsistent with each other, they may all be admitted as together constituting the last will and testament of the deceased; Will. Exec. *138. On the probate, the alleged will may be contested on any ground tending to impeach its validity; as, that it was not executed in due form of law and according to the requisite statutory solemnities; that it was forged, or was revoked, or was procured by force, fraud, misrepresentation, or undue influence over a weak mind, or that the testator was incompetent by reason of idiocy or lunacy. PROBATIO (Lat.). Evidence. See