Copyright
John D. (John Downey) Works.

Courts and their jurisdiction; a treatise on the jurisdiction of the courts of the present day, how such jurisdiction is conferred, and the means of acquiring and losing it online

. (page 45 of 93)
Online LibraryJohn D. (John Downey) WorksCourts and their jurisdiction; a treatise on the jurisdiction of the courts of the present day, how such jurisdiction is conferred, and the means of acquiring and losing it → online text (page 45 of 93)
Font size
QR-code for this ebook


2 McWillie v. Van Vacter, 35 Miss. 428; 72 Am. Dec. 127; Linsenbig-
ler ('. Gourley, 56 Pa. St. 166 ; 94 Am. Dec. 51 ; Townsend v. Townsend,
4 Cold. (Tenn.) 70; 94 Am. Dec. 184; Gaines v. Smiley, 7 S. & M. (Miss.)
53; 45 Am. Dec. 295.

3 Ante, sees. 6, 7, 23, 25 ; Schultz v. Schultz, 10 Grattan, 358; 60 Am,
Dec. 335. 353, note.

'"*8



434 COMMON LAW, EQUITY, AND STATUTORY JURISDICTION.

diction,' but that they are not inferior courts within the
technical meaning of the term.^ And that, when acting
within their limited sphere, all presumptions in favor of
their jurisdiction that would apply to the proceedings of
courts of general and superior jurisdiction will be in-
dulged.^

So recitals in the record showing service of notice
or other facts necessary to give jurisdiction, can not be

1 Propst V. Meadows, 13 111. 157 ; People v. Gray, 72 111. 343; People's
Sav. Bank v. Wilcox, 15 R. I. 258 ; 3 Atl. Rep. 211 ; Bostwick v. Skinner,
80 111. 147 ; Masters r. Brinker, 87 Ky. 1 ; 7 S. W. Rep. 158 ; People v.
Loomis, 96 111. 377 ; Snyder's Appeal, 36 Pa. St. 166 ; 78 Am. Dec. 372;
Walters v. Stickney, 12 Allen, 1 ; 90 Am. Dec. 122; Schultz v. Schultz, 10
Grattan, 358; 60 Am. Dec. 335, 353; Redmond v. Collins, 4 Dev. (N.
Car.), 430; 27 Am. Dec. 208.

2 Davis V. Hudson, 29 Minn. 27; 11 N. W. Rep. 136; Camden v. Plain,
91 Mo. 117; 4 S. W. Rep. 86; People v. Gray, 72 111. 343; Propst v.
Meadows, 13111. 157, 169; Sheldon v. Newton, 3 Ohio St. 494, 500; Bost-
wick v. Skinner, 80 111. 147; People v. Cole, 84 111. 327; Succession of
Bellande, 41 La. Ann. 491 ; 6 Sou. Rep. 505 ; Masters v. Brinker, 87 Ky. 1 ;
7 S. W. Rep. 158 ; Shroyer v. Richmond, 16 Ohio St. 455, 465 ; Shoemaker
V. Brown, 10 Kan. 383; Townsend v. Townsend, 4 Cold. (Tenn.) 70; 94
Am. Dec. 184; Walters?;. Stickney, 12 Allen, 1; 90 Am. Dec. 122, 136,
note ; Coltart v. Allen, 40 Ala. 155; 88 Am. Dec. 757; Andrews v. Avory,
14 Grattan, 229; 73 Am. Dec. 355; McPherson v. Cunliff, 11 Serg. &
Raw. 422 ; 14 Am. Dec. 642, 663.

^Ante, sec. 25; Davis v. Hudson, 29 Minn. 27; 11 N. W. Rep. 136; Peo-
ple V. Gray, 72 111. 343 ; Sherwood v. Baker, 105 Mo. 472 ; 16 S. W. Rep.
938; Blair?'. Sennott, 134 111. 78; 24 N. E. Rep. 969; People v. Cole,
84 111. 327; Rottman v. Schmucker, 94 Mo. 139; 7 S. W. Rep. 117;
Shroyer w. Richmond, 16 Ohip St. 455, 465; In re Burton, 93 Cal. 459; 29
Pac. Rep. 36; Kimball v. Fisk, 39 N. H. 110; 75 Am. Dec. 213; Bush v.
Lindsey, 24 Ga. 245 ; 71 Am. Dec. 117.

" Whether the decision of the county court was right or wrong, can
not be inquired into here. The county court is a court of general juris-
diction, of unlimited extent, over a particular class of subjects, and,
when acting within that sphere, its jurisdiction is as general as that of
tiie circuit court. When, therefore, it is adjudicating upon the admin-
istration of estates, over which it has a general jurisdiction, as liberal
intendments will be granted in its favor as would be extended to the
})roceedings of the circuit court, and it is not necessary that all the facts
and circumstances which justify its action shall affirmatively appear
upon the face of its proceedings. Propst ?-'. Meadows, 13 111. 168 ; Mitch-
ell V. Mayo, 16 lb. 83." People v. Gray, 72 111. 343, 347.



PROBATE JURISDICTION. 435

contradicted by parol in a collateral proceeding.' And
such a court, although one created by statute, and exer-
cising purely statutory powers, would, if the act to be done
were within the general jurisdiction of a common-law or
chancery court, be treated, under this rule, as a court of
general jurisdiction.

The rule itself is not to be commended, as it is believed
that the distinction between common-law, equity, and
statutory jurisdiction, thus maintained, does not exist in
reason, but is the result of a purely arbitrary rule.^ And
the question does not always turn upon the character of
the court, generally, but depends sometimes upon the na-
ture of the act to be done in the particular case, it being
held in some of the cases that where the court is exercis-
ing a power specially bestowed upon it by statute, it is a
court of special and inferior jurisdiction and its authority
to act must affirmatively appear on the face of its proceed-
ings.^

There are not a few cases, however, which hold that
they are inferior courts, and that their jurisdiction must
affirmatively appear, and will not be presumed.^ And

' Barnett r. Wolf, 70 111. 7(j ; Moore v. Earl, 91 Cal. 632; 27 Pac. Rep.
1087.

''Post, sec. 68.

^Ante, sec. 25 ; Donlin v. Hettinger, 57 111. 348 ; Smith v. AVesterfield,
88 Cal. 374; 26 Pac. Rep. 206; Root i: McFerrin, 37 Miss. 17; 75 Am.
Dec. 49.

" We must be careful to separate, in our-minds, the general powers of
the probate court, as organized under the constitution, from those of the
probate court exercising a special authority not derived from the con-
stitution, but delegated by the legislature over a particular subject and
under certain particular circumstances." Root v. McFerrin, 37 Miss. 17 ;
75 Am. Dec. 49, 56.

*Ante, sees. 6, 7; Gilliland r. Sellers, 2 Ohio St. 223; Detroit, L. & N.
R. Co. V. Probate .ludge, 63 Mich. 676; 30 N. W. Rep. 598; In re Haw-
ley, 104 N. Y. 250, 261 ; 10 N. E. Rep. 352; Smith r. AVesterfield, 88 Cal.
374; 26 Pac. Rep. 206; Haynes r. Meeks, 10 Cal. 110; 70 Am. Dec. 703 ;
State V. Reigart, 1 Gill, 1 ; 39 Am. Dec. 628.

The California cases are in a state of hopeless conflict on this ques-
tion. In Smith v. W^esterfield, 88 Cal. 374, 378 ; 26 Pac. Rep. 206, the su-
preme court of that state said :

"Proceedings for the administration of the estates of deceased per-



436 COMMON LAW, EQUITY, AND STATUTORY JURISDICTION.

others holding that while the jurisdiction of the court will
be presumed its proceedings are not conclusive as to the
jurisdiction of the court/

Under these decisions, it makes no difference whether
the court exercising probate jurisdiction is one of generul
or of special jurisdiction. It is deemed to belong to t)'e
latter class of courts as respects its exercise of probate
jurisdiction.^

Under the rule that probate courts stand on the same
footing as courts of general jurisdiction, they are held to
possess the power to set aside judgments rendered by them
at any time during the term.^

sons, and for their distribution to those who may be entitled thereto,
inchiding the determination of the heirs of the decedent, are purely
statutory. The superior court, while sitting as a court of probate, has only
such powers as are given it by the statute, and such incidental powers as per-
tain to all courts for the purpose of enabling them to exercise- the jurisdiction
which is conferred upon them. Although it is a court of general jurisdic-
tion, yet in the exercise of these powers its jurisdiction is limited and special,
and whenever its acts are shown to have been in excess of the power
conferred upon it, or without the limits of this- special jurisdiction, su(;h
acts are nugatory, and have no binding effect, even upon those who
have invoked its authority or submitted to its decision."

That is to say, in plain terms, tliat the superior court while exercising
its jurisdiction in " probate matters " is a court of special and inferior
jurisdiction.

In the later case. In re Burton, 9:] Cal. 459, 46;>; 29 Pac. Rep. .%, the
same court used this language :

" The superior court, while sitting in matters of probate, is the same as it
is while sitting in cases in equity, in cases at hnv, or in special proceedings ; and
when it has jurisdiction of the subject-matter of a case falling within
either df these classes, it has power to hear and determine, in the mode
provided by law, all questions of law and fact the determination of
which is ancillary to a proper judgment in such case."

That is to say, that a superior court, while sitting in matters of pro-
bate, is a court of superior and general jurisdiction. The later case no
doubt states the correct rule on tlie subject, but it is a little remarkable
that the case of Hmith r. Westerfield, which states a directly opposite
rule, should have been the only case cited by the court to support it.
See also Pennie r. Roach. 94 Cal. 515, 521 ; 29 Pac. Rep. 956 ; 30 Pac. Rep.
106.

' Masters >;. Brinker, 87 Ky. 1 ; 7 S. W. Rep. 158.

2 Donlin r. Hettinger, 57 111. 348; Smith v. Westerfield, 88 Cal. 374; 26
Pac. Rep. 206.

^ Post, sec. 84; Rottman v. Schmucker, 94 Mo. 139; 7 S. W. Rep. 117.



PRUHATE .TIRISIUCTION. 437

It must not be overlooked tliiit many of the cases turn
upon the language of constitutional or statutory provisions
fixing the standard of such courts.* It is generally held
that such courts ma}'^ exercise such powers only as are ex-
l)ressly granted to them by the statute and such powers as
are necessarily incidental thereto.^

Some of the cases go still further and hold that they
take no incidental powers or constructive authority, by
implication, or which is not expressly given by statute.^
But an act giving such incidental jurisdiction as may be
necessary or proper in .the final settlement of an estate
can not be held unconstitutional, although such jurisdic-
tion could not be conferred upon such court independently
of such administration and the settlement thereof.*

The authority to grant letters of administration is some-
times given to the clerk of the court, who may issue such
letters in vacation. But his acts in granting such letters
are ministerial and not judicial, and are not entitled to the
l)resumptions accorded to judicial proceedings.* But
where letters are granted by a court having jurisdiction to
grant them, it will be conclusively presumed that the
facts authorizing the granting of such letters, in the par-
ticular case, actually existed. The letters themselves are
conclusive evidence of the fact that they were properly
issued, as against a collateral attack.^ In some cases the
letters are held to be frima facie evidence.''

In some of the states there are direct statutory pro-

' Succession of Bellande. 41 La. Ann. 491 ; 6 Sou. Rep. 505.

"^ Riggs r. Cragg, 89 N. Y. 479; Clements' Appeal, 25 N. J. Eq. 508.

•'' In re Hawley. 104 N. Y. 250; 10 N. E. Rep. 352.

* In re ?kIePherson, 104 N. Y. 306; 10 N. E. Rep. 685.

= Illinois Cent. R. Co. v. Cragin, 71 111. 177.

« Kelly r. West, SON. Y. 139; Leonard v. Columbia S. & Nav. Co., 84
X. Y. 48; ;;.s Am. Rep. 491 ; O'Connor v. Huggins, 113 N. Y. 511, 517;
21 N. E. Rep. 184 ; Bolton r. Schriever, 135 N. Y. 65 ; 31 N. E. Rep. 1001 ;
Street v. Augusta Ins. Co., 75 Xvci. Dec. 722, note; Abbott v. Coburn, 28
Vt. 603; 67 Am. Dec. 735.

' Renuck r. Butterfield, 31 N. H. 70; 64 Am. Dec. 316.



4-38 COMMON LAW, EQUITY, AND STATUTORY JURISDICTION.

visions to the eiFeet that the grant of letters shall be con-
clusive.^

But such statutes simply declare a rule of law, af-
fecting the jurisdiction of such courts which is estab-
lished by the weight of authority without the aid of any
statute.^

The doctrine that the decrees or orders of a probate
court are conclusive as against a collateral attack extends
to other proceedings as well as to the granting of letters.
But such proceedings are not conclusive when obtained
by fraud, and may be set aside.* And in some of the
cases the conclusive effect of the proceedings of such
courts is confined to final decrees or orders.^ And this
must necessarily be so as to many of the proceedings of
such a court. Therefore the court itself may in a final
accounting correct any mistake made in the settlement of
partial accounts made by an administrator, executor, or
guardian.^

But a decree settling a final account and discharging an
executor or administrator is conclusive, until reversed, in
the absence of fraud.^

And a grant of letters can not be avoided collaterally

' Power r. Speckman, 126 N. Y. o54 ; 27 N. E. Rep. 474; Bolton v.
Schriever, 135 N. Y. 65, 69; 31 N. E. Rep. 1001.

' Bolton V. Schriever, 135 N. Y. 65, 69 ; 31 N. E. Rep. 1001 ; McFarland
V. Stone, 17 Yt. 165; 44 Am. Dec. 325.

3 In re Conts, 87 Cal. 480; 25 Pac. Rep. 685; Lataillade r. Orena, 91
Cal. 565, 576; 27 Pac. Rep. 924; Shoemaker v. Brown. 10 Kan. 383; Sin-
gerly r. Swain, 33 Peun. St. 102; 75 Am. Dec. 581 ; Schultz v. Schultz, 10
Grattan, 358; 60 Am. Dec. .335, 353, note ; Freeman on Jndg., 3d ed.,
sees. 319a, 608; Green v. Creighton, 10 S. & M. (Miss.) 159; 48 Am. Dec.
742.

* Lataillade v. Orena, 91 Cal. 565, 576; 27 Pac. Rep. 924; Griffith v.
Godey, 113 U. S. 89; 5 Sup. Ct. Rep. 383; Shoemaker r. Brown, 10 Kan.
383.

* Mix's Appeal, .35 Conn. 121 ; 95 Am. Dec. 222.

« Mix's Appeal, 35 Conn. 121; 95 Am. Dec. 222; Lucich r. Medin, 3
Nev. 93; 93 Am. Dec. 376; Wiggin v. Swett, 6 Met. 194; 39 Am. Dec.
716, 724, note.

' Stubblefield v. McRaven, 5 S. & M. (Miss.) 130 ; 43 Am. Dec. 502, 506,
note; Wiggin v. Swett, 6 Met. 194; 39 Am. Dec. 716, 724, note.



PROBATE JURISDICTION. 439

on the ground that the person to whom the grunt was
made was not competent to qualify.^

As jurisdiction is sometimes given of "all probate
matters'' without deliuing such jurisdiction, the question
has been presented in some cases as to what is included in
the term probate matters. -

A court of probate has beei^ defined as " a court exer-
cising 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 ec-
clesiastical courts of England.''^

^ Palmer v. Oakley, 2 Doug. 433; 47 Am. Dec. 41.

^ Winch V. Tobiu, 107 111. 212.

^Anderson, Die. of Law, 815; Board of Public Works v. Columbia
College, 17 Wall. 521; Houston v. Killougb, 80 Tex. 290; 16 S. W.
Rep. 50.

" Of the probate courts it is only said that a part of the judicial power
of the territory shall be vested in them. . What part? The answer to
this must be sought in the general nature and jurisdiction of such courts
as they are known in the history of the English law and in the jurispru-
dence of this country. It is a tempting subject to trace the history of
the probate of wills and the administration of the personal estates of
decedents, from the time it was held to be a matter of exclusive ecclesi-
astical prerogative, down to the present. It is sufficient to say that
through it all, to the present hour, it has been the almost uniform rule
among the people, who make the common law of England the basis of
their judicial system, to have a distinct tribunal for the establishment
of wihs and the administration of the estates of men dying either with
or without wills. These tribunals have been variously called preroga-
tive courts, probate courts, surrogates, orphans' courts, etc. To the
functions more directly appertaining to wills and the administration of
estates, have occasionally been added the guardianshii) of infants and
control of their property, the allotment of dower, and perhaps other
powers related more or less to the same general subject. Such courts
are not in their mode of proceeding governed by the rules of the com-
mon law. They are without juries, and have no special system of
pleading. They may or may not have clerks, sheriffs, or other analo-
gous officers. They were not in England considered.origjiially as courts
of record; and have never, in either that country or this, been made
courts of general jurisdiction, unless the attempt to do so in this case
be successful." Perris v. Higley, 20 Wall. 375.

" The proceeding provided by section 1064 of the Code of Civil Pro-
cedure is a special proceeding (Smith v. Westerfield, 88 Cal. 374), and is
embraced within the scope of ' matters of probate,' as clearly so as is



440 COMMON LAW, EQUITY, AND STATUTORY JURISDICTION.

And it is said that " such courts collect the assets, allow
claims, direct payments and distributions of the property
to legatees or others entitled, and generally, do every
thing essential to a final settlement of the affairs of the
deceased, and the claims of creditors against the estate/*'
But this does not extend to controversies between the es-
tate and third parties not claiming under such estate or as

the proceeding for the sale of real property to pay debts of an estate.
The objects of probate proceedings are to administer, settle, and dis-
tribute the estates of deceased persons. They are commenced by peti-
tion for letters of administration, or for the probate of wills, and they
are closed by a decree distributing ' the residue of the estate in the
hands of the executor or administrator, if any, among the persons who
hy Imo are entitled thereto' (Code Civ. Proc, sec. iGGo), and an order dis-
charging the executor or administrator, but who can not be discharged
from his trust until he has ' delivered up, under the order of the court
(order of distribution), all the property of the estate to the parties^ entitled.'
(Sec. 1697.) It will not be denied that the decree of distribution, and
the order discharging the executor or administrator are within the scope
of * matters of probate,' in the sense of the constitution, from which it
necessarily follows that the court must have the incidental power, in
some mode, to ascertain and determine who are entitled, as distributees,
to the residue of the estate, even though such determination should in-
volve a question as to title or possession of real property ; and I see no
objection, on constitutional grounds, to the mode provided by section
1664 of the Code of Civil Procedure. The superior court, while sitting
in matters of probate, is the same as it is while sitting in cases in equity,
in cases at law, or in special proceedings ; and when it has jurisdiction
of the subject-matter of a case falling within either of these classes, it
has power to hear and determine, in the mode provided by law, all ques-
tions of law and fact the determination of which is ancillary to a proper
judgment in such case. This is an incidental power pertaining ' to all
courts, for the purpose of enabling them to exercise the jurisdiction
which is conferred upon them.' (Smith y. Westerfield, 88 Cal. 374.)"
In re Burton, 93 Cal. 459, 463; 29 Pac. Rep. 36.

As to what such a grant of jurisdiction includes, see further: Hous-
ton V. Killough, 80 Tex. 296; 16 S. W. Rep. 56; Aspley v. Muiphy, 50
Fed. Rep. 376; Simmons v. Saul, 138 U. S. 439; 11 Sup. Ct. Rep. 369;
Detroit, L. & M. Fj. Co. v. Probate Judge, 63 Mich. 676; 30 N. W. Rep.
598 People v. Loomis, 96 111. 377 ; Brook v. Chappel, 34 Wis. 405 ; Tryon
V. Farnsworth, 30 Wis. 577; Townsend v. Townsend, 4 Cold. (Tenn.) 70;
94 Am. Dec. 184.

1 Board of Public Works v. Columbia College, 17 Wall. 521 ; Brook v.
Ghappel, 34 Wis. 405.



PROBATE JURISDICTION. 441

creditors of it ; ' or to cases where tlie question whether
the partj is a creditor or not, dei>ends upon the determin-
ation of some matter not within the jurisdiction of the
probate court.- Questions of title to real estate, for ex-
ample, arising, not under a claim to receive it in the distri-
bution of the estate, but adversely to such estate, do not
tall within the jurisdiction of a probate court, nor can it
determine the rights of strangers to property in tlie course
of administration.^ But when it becomes necessary to
])ass upon a question of title in order to ascertain and de-
termine who are entitled as distributees of the estate a
probate court has jurisdiction to pass upon the question.*
t^o where the determination of the question of title is nec-
essary for other jmrposes in the administration of the es-
tate;' and a probate court having power to determine
who arc the proper distributees of an estate has power to
inquire into the legitimacy of children claiming to be en-
titled to distribution;" and to determine every disputed
question of fact necessary to ascertain the amount due to
each distributee;'' and may, for the purposes of distribu-
tion, construe a will.^ Such jurisdiction extends to the
distribution of the estate, or a part of it, to persons claim-
ing under the heirs, as this is a part of the settlement of

' Hewitt's Appeal, 53 Conn. 24; 1 Atl. Rep. 815; Moblej' v. Andrews,
55 Ark. •J22 ; 17 S. AV. Rep. 805 ; Cox v. Cox, 77 Tex. 587; 14 S. AV. Rep.
201 ; Hickman r. Stone, <)9 Tex. 255 ; 5 8. W. Rep. 833.

' In re Miller's Estate, 136 Pa. St. 349; 20 Atl. Rep. 565.

^ Hickman r. Stone, 69 Tex. 255 ; 5 S. W. Rep. 838 ; Stewart v. Lohr, 1
Wash. St. 341 ; 25 Pac. Rep. 457 ; In re Haas, 97 Cal. 232; 32 Pac. Rep.
327; In re Kiraberly, 97 Cal. 281 ; 32 Pac. Rep. 234; Hewitt's Appeal,
53 Conn. 24; 1 Atl. Rep. 815.

* In re Burton, 93 Cal. 459; 29 Pac. Rep. 30 ; McWillie v. Van Vacter,
35 Miss. 428 ; 72 Am. Dec. 127: Hill r. Hardy, .34 :Miss. 289.

•'' Succession of Bellande, 41 La. Ann. 491 ; Sou. Rep. 505; Shaw's
Estate. 81 Me. 207; 10 Atl. Rep. 602; McWillie r. Van Vacter, 35 Miss.
42S : 72 Am. Dec. 127.

•^ In re Laramie, 6 N. Y. Sup. 175 ; Riggs ?'. Cragg, 89 ,\. Y. 479 ; In re
Jessup, 81 Cal. 408 ; 21 Pac. Rep. 976.

' McLaughlin v. McLaughlin, 4 Ohio St. 508; 04 Am. Dec. 603.

*• Riggs r. Cragg, 89 N. Y. 479 ; In re Verplanck, 91 N. Y. 439; Purdy
V. Hayt, 92 N. Y. 446.



442 COMMON LAW, EQUITY, AND STATUTORY JURISDICTION.

the estate.' And the court has jurisdiction to determine
whether such assignment was made or not as between the
claimant and the heir.-

Formerly, in Enghmd, probate courts had cognizance
only of wills pertaining to personal property, such as per-
tained, originally, to the ecclesiastical courts under the
civil law. But, generally, statutes conferring jurisdiction
in this country make no distinction between wills affect-
ing personal property and those relating to real estate.*
The general rule is that probate jurisdiction extends only
to the probate of wills and not to questions involving their
validity or the rights of parties under them, unless such
jurisdiction is expressly given by statute.^ But this is
subject to legislative control, unless restrained by some
constitutional provision, and in most of the states the
powers of such courts are made to cover the construction
of a will when necessary in the settlement of the estate.^
Usually the management and settlement of the estates of
infants, of persons of unsound mind, and other incompe-
tents, are committed to probate courts, or such as have
probate jurisdiction.' And in some of the states this juris-
diction is made exclusive in such courts;^ but it is not,
strictly speaking, probate business, although it has been
classed as such, in some cases, by statute.^

This is a jurisdiction that formerly belonged to the
chancery courts.^ And it is held that the jurisdiction in

' Hewitt's Appeal, 5:5 Conn. 24; 1 Atl. Rep. 815; McLaughlin v. Mc-
Laughlin, 4 Ohio St. 508; 64 Am. Dec. 603.
2 McCabe's Estate, 18 N. Y. Supl. 715.
■^ Ellis /•. Davis, 10<> U. 8. 485; 3 Sup. Ct. Rep. 327.

* Hanscora v. Marston, 82 Me. 288; 19 Atl. Rep. 460.
5 Glover r. Reid, 80 Mich. 228; 45 N. W. Rep. 01.

« Ferris v. Higley, 20 Wall. 375; Wing v. Dodge, 80 111. 564; Wilson v.
Roach, 4 Cal. 362; Gormau v. Taylor, 43 Ohio St. 86; IN. E. Rep. 227;
Shroyer r. Richmond, 16 Ohio St. 455; Reed v. Ring, 93 Cal. 96; 28 Pac.
Rep. 851.

' Gorman r. Taylor, 43 Ohio St. 86 ; IN. E. Rep. 227 ; Shroyer v. Rich-
mond, 16 Ohio St. 455.

» Winch V. Tobin, 107 111. 212.

* Brown v. Snell, 57 N. Y. 286 ; Davis v. Spencer, 24 N. Y. 386.



PROBATE JURISDICTION. 448

the probate court is controlled by the general rules of
equity jurisprudence relating thereto.*

A distinction is made between guardians appointed by
the court and testamentary guardians with respect to the
jurisdiction of the court over them. And it is held that
the court can exercise no jurisdiction over the latter ex-
cept such as is expressly conferred upon it by statute.^
But jurisdiction over testamentary guardians is generally
given by statute.^ And in the absence of statutory pro-
visions conferring jurisdiction, courts of chancery have
control of such guardianships.*

The existence of a testamentary guardian does not de-
prive the court of power to appoint a statutory guardian
where such testamentary guardian has not taken upon
himself the trust or entered upon the performance of its
duties. It is otherwise where such guardian has entered
upon the management of the guardianship under the direc-
tion of the probate court.^ Nor does the fact that a guar-
dian has been appointed in another state deprive the court
of such jurisdiction.^

Jurisdiction of the settlement of estates was also in coprts
of chancery.^ This jurisdiction grew up mainly out of the in-



Online LibraryJohn D. (John Downey) WorksCourts and their jurisdiction; a treatise on the jurisdiction of the courts of the present day, how such jurisdiction is conferred, and the means of acquiring and losing it → online text (page 45 of 93)