income of estates and hold back the principal? Are testators usually wiser than those to whom they leave their property?

3. How long may an estate be kept together by will? What is the objection to perpetuities?

4. What is the effect of a request to a legatee to pay over money or property? How can more discretion as to gifts be given the legatee?

5. Should a man expect to be able to transact any business when he is in his last illness? Is he likely to make a wise, well-thoughtout will under such circumstances?

6. Why should no ill feeling be shown in a will?

7. If a will is made, and in a few years, by births, deaths, and mutations of fortunes, the circumstances of the legatees are much changed, what should the testator do? A makes a will and leaves everything to his wife; in six years his wife dies leaving no children. Then A dies without making a new will. What happens to his estate?

8. A, who is a skilled real estate operator, dies leaving all to his wife and appointing her executrix. The last years of his life he bought much real estate, paying only part, and he built several houses, borrowing the money to construct them. It would take an able real estate man to straighten out all the deals and to turn the property into safe investments. What is likely to happen?

9. Is it best to secure legal aid to draw a will?

CHAPTER V

PROBATING A WILL

§ 35. The Probate Court

The probating of wills is cared for by special courts created expressly for this sort of work. These courts are known in the various states as probate, surrogate's, orphans', and prerogative courts, but their functions are the same. They are courts of record and of limited jurisdiction. In their own territory they have original jurisdiction over all matters relating to the probate of wills, the settlement of estates, the appointment of administrators, the appointment of guardians for orphans, and other similar matters. An appeal may be taken from the action of these courts, and they may be overruled by an appellate court. Where there is no regular probate court, a court of equity may take charge of all matters of probate jurisdiction, but where the proper court exists equity has no jurisdiction.

Probate courts are much less formal than the usual courts of law and equity. In most localities parties can appear personally or by agents, who need not be attorneys. Usually it is wiser to have someone familiar with probate procedure in charge. It is not reasonable to expect the probate judge or clerk to instruct an uninformed person as to the proper procedure. (See Form 6, which gives the rules of probate procedure in Maine, where it is simple and informal.) In some places probate judges are elected who are not even members of the bar.

The probate court usually has jurisdiction where the person whose will is to be probated or whose estate is to be

settled was resident within the territory in which such court is situated. Wills of real property must be separately proved in the proper probate court in each state in which such real property is located, unless a statutory provision of any state dispenses with such probate in that state. Where the will is filed in one court and real or personal estate exists in other jurisdictions, a copy of the will certified to by the first court may be filed in the other courts.

If probate proceedings have not been instituted in the county of residence, the general rule is that administration may be granted on petition of a husband or a wife or a relative of the testator in any county of any state or territory where unadministered personal property of a deceased person is found. If personal property is not found to pay debts, the real property is subject to the claim of any creditor of the deceased, and administration proceedings may be instituted in any county where such real estate is found.

§ 36. Where a Will Is Probated

"Probate" means proof. It is the act of an authorized official declaring that the document offered as the last will and testament of a decedent is in truth such will. A will should be offered for probate at the court of probate for the county in which the testator resided and had his home. All transfers of personal property are governed by the laws of the place of the testator's permanent residence. If the will disposes of real property situated in another state or country, a copy of the will and its proof, certified to be a true copy by the clerk of the court where it was filed, must be filed in a probate court of the county of the state or country where the land is situated. If the land were in another county of the same state, a certified copy of the will should be filed in the probate court of the county or in the office of the county clerk or registrar of deeds for the county. In most parts

of the country such authenticated copy of a will and its probate, when filed in a probate court, will pass title to land without further formality.

If it be necessary to sell land, or to bring suit concerning any personal property, or to collect claims in any foreign jurisdiction, what are called "ancillary letters of administration" can be taken out there. "Foreign" as used in this connection means in another county, state, or country. The place of death or of making the will has no effect as to the proper court in which to probate the will.

Usually personal property or money or claims in another jurisdiction can be secured by the voluntary action of those having possession without suit or ancillary administration.

§ 37. Who May Probate a Will

Sometimes a will is not found immediately. When it is found, the executor or executors named in it should present it without delay to the judicial officer who presides over the court of probate, or the orphans' court, or the surrogate's court, in the county in which the testator lived.

The executor named in the will may be dead, may be out of the county, or may be incapacitated. In such cases anyone who takes under the will may petition that the will be admitted to probate, or if such persons are remiss, a creditor may present the petition.

No one who has been made an executor under the provisions of a will can be kept from acting as such if he is competent; but he himself may reject his nomination or fail to appear at the probating of the will. If for any reason he refuses to serve as executor, he cannot be forced to act.

Anyone who is not interested under the will and is not a creditor cannot bring a petition for probate, and the proper person to bring such petition is an executor or executors, named as such in the will.

In practically all the states it is a criminal offense for anyone to conceal or destroy a will in order to prevent it from being probated.

If the applicants have not possession of the will, they may describe it and ask that those having it in custody be cited to produce it for probate.

§ 38. How a Will Is Probated

A will should be presented for probate as soon as possible after the funeral of the testator, and thereafter any delay in the proceedings would be due to the proceedings in court and not to the fault of those whose duty it is to probate the will. In the United States no distinction is made between wills of personalty and wills of realty.

After a proper person has petitioned the court to admit the will to probate, a time is set for the proof. The petition should name the testator and the fact of his death, describe the will and name the residence of said decedent, state whether the will relates to real or to personal property or to both and give any other reason there may be for probating it in the county, give the proof of the jurisdiction of the court in the particular case, and specify the persons who are to be cited, with their addresses. (See next section.)

The time set for the probate is affected by the local statutes and the usage of the court. As notice of the hearing must be given to everyone interested in the settlement of the estate, it would depend in each state upon the time required to do this; in New York this may run from eight days to six weeks. This notice may be given by personal notice or by publication in a newspaper. The methods vary in different states, and

each has a certain form in which such notice must be written. Unless the notice is given in the required form, those notified will not be bound by any subsequent proceedings.

Where all the parties concerned are of full age, they may