34. Presumption of jurisdiction-Collateral attack on orders and judgments for want of jurisdiction-The probate court is a court of superior jurisdiction and enjoys the same presumptions of jurisdiction as superior courts of common-law jurisdiction. Its order, judgments and decrees with reference to matters over which it has general jurisdiction. are presumed to be within its jurisdiction in the particular case, and are not subject to collateral attack for want of jurisdiction not affirmatively appearing on the face of the record. The mere absence from the record of facts essential to jurisdiction does not render an order, judgment or decree subject to collateral attack. In other words the presumption of jurisdiction on collateral attack is conclusive, unless the want of jurisdiction affirmatively appears from the record itself. There are cogent practical reasons for this presumption and for applying it rigorously. The business of our probate courts is very large and is constantly increasing. In the course of a few years the proceedings therein affect almost every person in the community. The title to a very considerable portion of the private real property in the state passes through these courts every year, and in a period of twenty or thirty years nearly all of it. The probate judges are not required to be, and as a general rule they are not, men learned in law. Though the business of these courts is commonly administered with integrity and good sense, and with due regard for the interest of those concerned, it is not and it cannot be expected that it ordinarily will be administered with strict regularity, as respects forms and modes of procedure, or, what is more in point, that its proceedings will be fully and accurately entered of record, or its records preserved with the care which the real importance of its business demands. The consequence is that many important documents are mislaid or lost, and the records are not usually quite perfect. In such circumstances the security and certainty of titles to real property appear to demand that the proceedings of probate courts should be upheld, whenever they fairly can be, by the aid of such presumptions as the law in general applies to courts of superior juris

41 Davis v. Hudson, 29 Minn. 27, 11 N. W. 136; Culver v. Hardenbergh, 37 Minn. 225, 230, 33 N. W. 792; Curran v. Kuby, 37 Minn. 330, 33 N. W. 907; Menage v. Jones, 40 Minn. 254, 41 N. W. 972; Stahl v. Mitchell, 41 Minn. 325, 332, 43 N. W. 385; Burrell v. Chicago, etc., Ry. Co., 43 Minn. 363, 364, 45 N. W. 849; Logenfiel v. Richter, 60 Minn. 49, 61 N. W. 826; Kurtz v. St. Paul & Duluth R. Co., 61 Minn. 18, 22, 63 N. W. 1; McNamara v. Casserly, 61 Minn. 335, 340, 63 N. W. 880; State v. Kilbourne, 68 Minn. 320, 322, 324, 71 N. W. 396; Fitzpatrick v. Simonson Bros. Mfg. Co., 86 Minn. 140,

90 N. W. 378; Hadley v. Bourdeaux, 90 Minn. 177, 95 N. W. 1109; Aho v. Republic Iron & Steel Co., 104 Minn. 322, 325, 116 N. W. 590; Hanson v. Nygaard, 105 Minn. 30, 32, 117 N. W. 235; Doran v. Kennedy, 122 Minn. 1, 141 N. W. 851, 237 U. S. 362; Wilkowske v. Lynch, 124 Minn. 492, 145 N. W. 378; Fridley v. Farmers & Mechanics Savings Bank, 136 Minn. 333, 162 N. W. 454; Schmitz v. Martin, 149 Minn. 386, 183 N. W. 978; Woerner, Am. Law of Adm. (2 ed.) § 145; 19 Ency. Pl. & Pr. 838; 17 A. & E. Ency. of Law (2 ed.) 1076; 11 Cyc. 694. See title "Collateral Attack" in index.

diction.42 This presumption does not apply in the case of foreign courts. The presumption of jurisdiction applies only when the court has general jurisdiction of the subject-matter." An exception to the general rule is made by statute with reference to sales of real property under a license from the probate court.15 Where the facts showing want of jurisdiction appear upon the face of the record, or are conceded, an order, judgment or decree of the probate court may be attacked collaterally for want of jurisdiction.""

PRACTICE

35. Petitions-Statute-Every proceeding in the probate court shall be commenced by petition, briefly setting forth the ground of the application, and signed by or on behalf of the party making the same, and be verified as in the case of pleadings in civil actions. A petition is essential to the original acquisition of jurisdiction over the estate of a deceased person or other matter. If it affirmatively appears from the records or is conceded that no petition was presented all subsequent proceedings are void and subject to collateral attack.48 The jurisdiction of a probate court over the estate of a deceased person or other matter attaches when its general jurisdiction is invoked by the presentation to it of a proper petition by some person showing a prima facie right to take such action. Informalities in a petition do not invalidate the proceedings.50 All petitions relating to a particular subject-matter may be heard and disposed of at once."

51

36. Pleadings-In probate practice there are no pleadings.52 Provision is made for pleadings in the district court on appeal from the probate court in certain cases.53

37. Examination of parties and witnesses-A probate judge may examine parties and witnesses under oath concerning any matter on which

42 Davis v. Hudson, 29 Minn. 27, 36, 11 N. W. 136.

43 See §§ 299, 305, 647.

44 Davis v. Hudson, 29 Minn. 27, 11 N. W. 136. See, where the supposed decedent is in fact living, 88 616, 662.

45 See § 998.

46 Culver v. Hardenbergh, 37 Minn. 225, 33 N. W. 792; Hanson v. Nygaard, 105 Minn. 30, 117 N. W. 235; Bombolis v. Minneapolis & St. Louis R. Co., 128 Minn. 112, 150 N. W. 385.

47 G. S. 1913, § 7227. See § 31.

48 Bombolis v. Minneapolis & St. Louis R. Co., 128 Minn. 112, 150 N. W. 385. See § 31.

49 Hanson v. Nygaard, 105 Minn. 30, 117 N. W. 235; Bombolis v. Minneapolis & St. Louis R. Co., 128 Minn. 112, 150 N. W. 385; Fridley v. Farmers & Mechanics Savings Bank, 136 Minn. 333, 162 N. W. 454; In re Barlow's Estate (Minn.) 188 N. W. 282.

50 Fridley v. Farmers & Mechanics Savings Bank, 136 Minn. 333, 162 N. W. 454.

51 Chadwick v. Dunham, 83 Minn. 366, 368. 86 N. W. 351.

52 Chadwick v. Dunham, 86 Minn. 36€, 368, 86 N. W. 351.

53 See § 68.

he is called upon to exercise his judgment and may compel their attendance for that purpose."

38. Hearing several motions at once-Several motions relating to a particular subject-matter and all petitions relating thereto may be considered together.55

39. Informalities disregarded-Things that are mere formalities are not required of probate courts in the discharge of their powers and duties.56

40. Notice-How far jurisdictional-Administration proceedings are in rem and jurisdiction is not acquired by notice to interested parties. Notice may be made jurisdictional by statute, but it is not a requirement of due process of law. If a statute requires a notice, but does not make it jurisdictional, the want of notice does not render subsequent proceedings void and subject to collateral attack, but merely renders them voidable on direct attack." Notice is made jurisdictional by statute in public sales of realty by a representative under license from the probate court,°1 After administration proceedings have terminated the rights of residents thereunder cannot generally be affected by fresh proceedings in the probate court without personal notice if they can be found, and the rights of non-residents thereunder probably cannot be affected without some form of notice.58

01

41. Notice of hearings-When required-Statute-Before proceeding, the court shall require notice to be given to all persons interested, in the following cases:

1. In granting letters of administration.

2. In the allowance of any last will and testament, and granting letters thereon.

3. In hearing the account of an executor or administrator.

4. In distributing any estate to heirs, legatees, or devisees.

5. In licensing the sale, mortgage, or lease of real estate.

In all other cases, unless in this chapter otherwise provided, such notice shall be given as the court may direct.59

42. Notice by citation-Publication-Further notice-Statute-For the purposes of such notice, the court shall issue its citation, requiring all persons interested to show cause, if any they have, at a time and place specified, why the petition therein referred to should not be

54 G. S. 1913, § 7211 (1); Lafferty v. People's Savings Bank, 76 Mich. 35, 70, 43 N. W. 34.

55 Chadwick v. Dunham, 83 Minn. 366, 86 N. W. 351.

56 In re Scheffer's Estate, 58 Minn. 29, 34, 59 N. W. 956. See Davis v. Hudson, 29 Minn. 27, 36, 11 N. W. 136.

57 Hanson v. Nygaard, 105 Minn. 30, 175 N. W. 235; In re Barlow's Estate (Minn.) 188 N. W. 282. See McNamara v. Casserly, 61 Minn. 335, 63 N. W. 880. 01 See §§ 976, 998.

58 McNamara v. Casserly, 61 Minn. 335, 63 N. W. 880. See § 33.

59 G. S. 1913, § 7228.

granted; and such citation shall be served by three weeks' published notice. The court, in its discretion, may cause other or further notice to be given to such persons as it may deem proper.6°

43. Designation of newspapers for publications-Statute-Whenever published notice or citation is required to be given in any proceeding in probate court, the judge of probate shall order such notice or citation to be published in such legal newspaper within the county as shall be designated by the petitioner in such proceedings or by his attorney; provided, that a notice to creditors to present claims against an estate shall be published in such legal newspaper within the county as shall be designated by the representative of the estate in which such notice is given, or by his attorney. If such designation is not made, a judge of probate may order the notice to be published in any legal newspaper within the county. The publication of a notice in a newspaper not qualified to publish legal notices is a mere irregularity not affecting the jurisdiction of the court and does not render the proceedings subject to collateral attack.o1

61

44. Personal service-When necessary-Statute-Every citation to an individual requiring him to perform a particular duty, if he resides in the state and his residence is known, shall be served upon him personally eight days before the day of hearing, or such less time as the court in such citation shall direct.62

45. Probate of will of alien-Notice-Statute-Whenever application for letters of administration with the will annexed shall be made by any person other than the widow or kin of a decedent, and such decedent was a native of any foreign country, notice of the time and place of hearing shall be served by mail on, the consular representative of such country, if there be one in this state; otherwise upon the secretary of state, who shall forward the same to the chief diplomatic representative of such country at Washington.63 Whenever an application is made for administration on the intestate estate of a foreigner dying in this state the notice provided by this statute should be given."

46. Further notices Statute-The court may require notice to be given in addition to the notices hereinbefore provided for, to designated parties known to be interested, by mailing the same, or by publication in a newspaper printed in other than the English language, or in such other manner as it may order.65

47. Premature hearings-Curative act-That any hearing or proceeding heretofore had or held in any probate court in this state, under

60 G. S. 1913, § 7229.

61 Laws 1917, c. 151.

01 In re Barlow's Estate (Minn.) 188 N.

W 282.

62 G. S. 1913, § 7230.

63 G. S. 1913, § 7231.

64 Austro-Hungarian Consul v. Westphal, 120 Minn. 122, 139 N. W. 300.

65 G. S. 1913, § 7232.

the provisions of the probate code relating to the probating of a will, the appointment of an executor or administrator, or the issuance of a final decree, where the notice of such hearing or proceeding was published the requisite number of times in a legal and proper newspaper, but such hearing or proceeding was prematurely held, and no action or proceeding has heretofore been instituted to set aside or invalidate the action of the probate court in such hearing or proceeding, is hereby legalized, validated and given the same force and effect as if proper notice thereof had been given and such hearing or proceeding had been held at the proper time; provided that nothing herein contained shall be construed to apply to any action or proceeding heretofore brought or which shall be brought within one year from the passage of this act to test the validity of any such probate hearing or proceeding, or in which a defense alleging the invalidity thereof has been interposed; or to any action heretofore brought or which shall be brought within one year from the date of the passage of this act involving any right, title or estate in lands situate within this state derived under said will.66

48. Notice of filing orders, judgments and decrees-Statute-Every probate judge, at the time of filing any appealable order, judgment, or decree, shall cause notice of such filing to be given, either personally or by mail, to all parties interested who have appeared of record on the hearing, or to their attorneys: Provided, that this section shall not apply in uncontested cases or where final decision was made at the time of hearing. The notice provided for by this statute does not limit the time of appeal. The purpose of the statute is to give all the parties who took part in the hearing speedy notice of the decision, so that those prevailing may, by giving the defeated parties notice, limit their right of appeal to thirty days, instead of six months which they otherwise have.19

48

49. Amendments-Extensions of time-G. S. 1913, §§ 7783, 7786, authorizing amendments, extensions of time and relief from mistakes, possibly apply to the probate courts.50

50. Clerk may sign certain orders and citations in his own nameStatute The judge of the probate court of any county in this state in which county there is a clerk of the probate court may by written authorization duly recorded in the office of the clerk of said probate court authorize said clerk to issue the following orders and citations and sign the same in the name of the clerk instead of having the same signed in the name of the judge to wit:

1. Citation for hearing of petition for letters of administration.

66 G. S. 1913, § 7235. See also, Laws 1919, c. 241.

48 G. S. 1913, § 7233.

49 Timm v. Brauch, 133 Minn. 20, 157 N. W. 709.

50 See § 52; Davis v. Superior Court, 35 Cal. App. 473, 170 Pac. 437.