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CHAPTER 47.

THE PROBATE COURT.

COMPILED FROM

Chap. 44 of the Revised Statutes, pp. 247-253.

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1. Probate court to be held in each district.
2. To be a court of record, and appoint a reg-
ister.

3. Register to be sworn. His duties.

4. Copies, attested by register, to be legal evidence; also, his certificates.

5. Further duties of register.

SECTION

23. Court to appoint and notify times and places of courts.

24. Court open at all times.

25. May be adjourned, when judge is absent,

by register.

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26. County court to have appellate jurisdiction. 27. Jurisdiction of supreme court.

6. Acts required of register valid, if performed 28. Appeals taken to county court. by judge.

29. Appellant to give bond.

7. In what cases register to perform duties of 30. Bond, to whom given and how prosecuted.

judge.

8. Cases in which judge is incapacitated.

9. Same subject.

10. Jurisdiction of probate court.

11. Judge or register may administer oaths.

12. Courts may issue warrants and other process.

31. How notice to be given.

32. Copies to be filed in county court.

33. Proceedings in county court.

34. Costs, in case of appeal.

35. Proceedings when appellant neglects to en

ter.

18. May, by warrant, commit persons refusing, 36. Final decision to be certified to probate &c.

court.

14. May issue commission to take testimony- 37. Judge and register prohibited judging on depositions. appeal, or acting as attorney, &c.

15. What court to have jurisdiction, in case of 38. Disputed claims between executors, &c. and resident.

16. In case of non-resident.

others, may be referred.

39. Also, between executors, &c. and estate.

17. Court taking cognizance to have exclusive 40. Persons cited, on complaint, may have cost. jurisdiction. 41. Administrators of persons, under contract to sell lands, may be licensed to deed. 42. Notice to be given.

18. Jurisdiction not to be contested, except, &c. 19. Jurisdiction in appointment of guardians. 20. Same subject.

21. Court, appointing guardian, to have exclusive jurisdiction.

22. Courts to be held at least once in each month.

43. Administrators of persons holding lands in trust, may be licensed to deed.

44. Sureties and other persons interested may petition probate court for relief in reference to bonds; proceedings thereon.

SECTION 1. A probate court, held by a judge appointed according to the provisions of the constitution, shall be continued in each probate district.*

SECT. 2. Such court shall be a court of record, and have a seal; shall appoint a register, and may remove him at pleasure.

SECT. 3. The register shall be sworn, and shall perform the duties of clerk of the court; shall keep a true and fair record of each order, sentence and decree of the court, and of all other things proper to be recorded; and, on the legal fees being paid, shall give true and attested copies of the files, records and proceedings of the court.

SECT. 4. All copies, so attested, shall be legal evidence, in all the courts of law and equity in this state; and certificates of probate,

* Sections 1 to 9 being identical with the corresponding sections of chap. 44 of the Revised Statutes, the designation at the end of each is omitted.

of administration or of guardianship, attested by the register, may be given in evidence, and have the same effect as any probate, letter of administration or letter of guardianship, made out in due form of law.

SECT. 5. The register shall also make out and sign all letters of administration and of guardianship, and all warrants or other processes, or written instruments issuing from the probate court.

SECT. 6. All the services and acts, required of the register in the preceding sections, shall be valid, if performed by the judge.

SECT. 7. If a judge of any probate court shall remove out of his district, die, resign or otherwise become incapacitated for executing the duties of his office, the register shall hold the court, have all the powers and perform all the duties of the judge, until such incapacity shall be removed, or until another judge shall be appointed.

SECT. 8. When a judge, his wife or child, shall be an heir or legatee, or when such judge shall be an executor or administrator of the estate of a deceased person, he shall be deemed to be incapacitated for executing the duties of his office, in relation to that estate; and the register shall perform such duties.

SECT. 9. When the judge, as creditor or otherwise, shall be interested in any question to be decided by the court, he shall be deemed to be incapacitated for acting in the decision of that question, and the register, in such case, shall perform the duties of judge. SECT. 10. The probate court shall have jurisdiction of the probate of wills, of the settlement of testate and intestate estates, of the appointment of guardians, and of the powers, duties and rights of guardians and wards.

SECT. 11. The judge or register shall have power to administer all oaths necessary in the transaction of business before the probate court, and all oaths required, by law, to be administered to persons executing trusts under the appointment of such court.

SECT. 12. Probate courts may issue all warrants and processes in conformity to the rules of law, which may be necessary to compel the attendance of witnesses, or to carry into effect any order, sentence or decree of such courts, or the powers granted them by law.

SECT. 13. If any person shall refuse or neglect to perform any order, sentence or decree of a probate court, such court may issue a warrant, directed to any sheriff or constable in this state, requiring him to apprehend and imprison such person, in the common jail of the county, until he shall perform such order, sentence or decree, or be delivered by due course of law.

SECT. 14. When a witness, whose testimony is necessary to be used before any probate court, shall reside out of this state, or, by reason of age or bodily infirmity, shall be unable to attend in person, the court may issue a commission to one or more competent persons to take the testimony of such witness; and depositions, taken according to the provisions of the law, for taking depositions to be used on the trial of civil causes, may be used on the trial of any question before the probate court, where such testimony may be proper.

SECT. 15. If any person shall die, being an inhabitant of this state at the time of his death, his will shall be proved, or letters of

administration on his estate shall be granted, and his estate settled in the probate court of the district, in which he shall have resided at the time of his death.

SECT. 16. If the person dying shall reside out of this state, at the time of his death, his will shall be allowed and recorded, and letters testamentary or of administration shall be granted in the probate court of any district in which he had estate.

SECT. 17. When any probate court shall have first taken cognizance of the settlement of the estate of a deceased person, as mentioned in the two preceding sections, such court shall have jurisdiction of the disposition and settlement of all the estate of such deceased person, to the exclusion of all other probate courts.

SECT. 18. The jurisdiction assumed by any probate court, in any case, so far as it depends on the place of residence of any person, or the location of his estate, shall not be contested in any suit or proceeding whatever, except in an appeal from the probate court in the original case, or when the want of jurisdiction appears on the record.

SECT. 19. When, by law, a guardian is required to be appointed of a minor, who is interested as heir or legatee, or representative of such heir or legatee, in any estate, which is in a course of settlement, such guardian shall be appointed by the probate court, before which such estate is in a course of settlement; but afterwards, if the minor shall reside in another district, and is of the age of fourteen years, he may choose and have a guardian appointed in the district where he shall reside; and, in that case, the powers of the first guardian shall cease.

SECT. 20. In all other cases, guardians shall be appointed by the probate court of the district, where the persons, for whom the guardians shall be appointed, shall reside.

SECT. 21. The probate court, by which a guardian shall be appointed, shall have jurisdiction of all the estate of the ward, and shall alone be authorized to license the sale of such estate, and settle such guardian's account.

SECT. 22. Probate courts, in each district, shall be notified and held as often as once in each month.

SECT. 23. Except, as provided in the preceding section, the probate court in each district shall appoint such certain fixed times and places, for holding courts, as shall be judged most convenient for all persons interested; and shall give notice of such times and places, in one or more newspapers circulating in the district.

SECT. 24. The probate court shall be deemed open at all times for the transaction of any ordinary business, which may be necessary, when previous notice is not required to be given to the persons interested.

SECT. 25. A probate court may be adjourned, as occasion shall require; and when the judge is absent at the time for holding a court, the register may adjourn it.

SECT. 26. The county court shall have appellate jurisdiction of all matters originally within the jurisdiction of the probate court. SECT. 27. The supreme court shall have jurisdiction of all questions of law, arising in the course of the proceedings of the county

court in probate matters, in the same manner as provided by law in other cases.

SECT. 28. Any person interested in any order, sentence, decree or denial of any probate court, and considering himself injured thereby, may appeal therefrom to the county court in the same county, at the stated session, next after such appeal; and such appeal shall be granted by the probate court, if application in writing be made and filed in the register's office, within twenty days from the date of the decision appealed from.

SECT. 29. In all cases of appeal from the proceedings of the probate court, before such appeal shall be allowed, the person appealing shall give a bond to the adverse party, (see the next section) to the satisfaction of the probate court, with a condition, that he shall prosecute such appeal to effect, and pay all intervening damages and costs occasioned by such appeal.

SECT. 30. The bonds provided for in section twenty-nine of chapter forty-four of the Revised Statutes, (§ 29 of this chap.) shall hereafter be taken to the probate court, instead of the adverse party. Such bonds may be prosecuted as provided in chapter fifty-six of the Revised Statutes, (chap. 59 of this compilation.) (No. 25 of 1848.)

SECT. 31. In all cases of appeal, the person appealing shall give notice of such appeal, and of the session of the court, to which the appeal is taken, in such manner as the probate court shall direct, at least twelve days before the session of the county court, if there shall be so many days; if not, as soon as may be. (Sec. 30 of R. S.)

SECT. 32. The person appealing shall procure and file in the county court, to which the appeal is granted, a certified copy of the record of the proceedings appealed from, of the application for the appeal filed in the probate court, and of the allowance of the same, together with the proper evidence that notice has been given to the adverse party according to the order of the probate court. (Sec. 31 of R. S.)

SECT. 33. When such certified copy shall have been filed in the county court, such court shall proceed to the trial and determination of the question according to the rules of law; and if there shall be any question of fact to be decided, issue may be joined thereon, under the direction of the court, and a trial thereof had by jury. (Sec. 32 of R. S.)

SECT. 34. The county court, or supreme court, as the case may be, may tax costs for the party who shall prevail; or when, in the opinion of the court, justice shall require it, the court may deny such costs, and may tax costs for either party; and if costs be taxed against an executor or administrator, the same shall be allowed to him in his administration account. (Sec. 33 of R. S.)

SECT. 35. If the person appealing from the proceedings of the probate court, as provided in this chapter, shall neglect to enter his appeal, the county court, to which such appeal shall be taken, on motion and producing attested copies of such appeal by the adverse party, shall affirm the proceedings appealed from, and may allow costs against the appellant. (Sec. 34 of R. S.)

SECT. 36. The final decision and judgment, in cases appealed,

as provided in this chapter, shall be certified to the probate court by the county court, or supreme court, as the case may be; and the same proceedings shall be had in the probate court, as though such decision had been made in such probate court. (Sec. 35 of R. S.)

SECT. 37. No judge or register of any probate court shall be admitted to have any voice in judging or determining any appeal from his decision, or be permitted to act as attorney or counsel thereon, or receive fees as counsel in any matter pending in the probate court, of which he is judge or register. (Sec. 36 of R. S.)

SECT. 38. When there shall be any disputed claim existing between an executor or administrator in behalf of the estate he represents, or a guardian in behalf of his ward and any other person, such disputed claim may, with the consent of the parties in writing, be referred to referees, under an order of the probate court, whether an appeal shall have been granted or not, if such appeal shall not have been entered in the county court; and the award of the referees, made in writing, and returned to and accepted by the court, shall be final between the parties. (Sec. 37 of R. S.)

SECT. 39. When a disputed claim shall exist between an executor or administrator, and the estate which he represents, such claim may be referred, under an order of the probate court, by the consent in writing of such executor or administrator and all the heirs, and in case of an insolvent estate, of the creditors, to referees, whose award, made in writing, and returned and accepted by such court, shall be final between the parties; and if any of the heirs shall be minors, their guardians may consent to such reference. (Sec. 38 of R. S.)

SECT. 40. When any person shall be cited, on the petition or complaint of another, as provided by law, to appear before the probate court, and answer to such petition or complaint, and a trial shall be thereupon had, and the petitioner or complainant shall not prevail in his complaint, the court may tax costs for the person so cited, and issue execution for the same. (Sec. 39 of R. S.)

SECT. 41. In all cases where a deceased person shall have been, in his lifetime, under contract, binding in law or equity, to deed any lands to another person, the probate court may, on application for that purpose, grant license to the executor or administrator of such deceased person to convey such lands according to such contract; and if the contract shall be to convey lands to the executor or administrator, the judge of the court shall execute the deed; and the deed, executed by such executor, administrator or judge, shall be as effectual to convey such lands, as if executed by the deceased person in his lifetime, provided that: (Sec. 40 of R. S.)

SECT. 42. No probate court shall grant license to deed the lands of a deceased person, as provided in the preceding section, until notice of the application for that purpose shall be given to all persons interested, under an order of such court, appointing a time and place of hearing, and published three weeks successively in such newspaper, as the court shall direct, previous to the time so appointed; nor, if it shall appear to the court, on a hearing, that the assets in the hands of the executor or administrator will thereby be so reduced, as

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