The American Judiciary

by Simeon E. Baldwin

All real estate left by a decedent is ordinarily made, by statute, liable for his debts in case of a deficiency of personal property, except so far as it may be charged with a right of dower. Even if it has gone into the possession of an heir or devisee, the proper Probate Court can order its sale for this purpose, if it should appear on the allowance of the administration account to be necessary.

The formal establishment or "probate" of a will does not affirm the validity of its provisions. It simply adjudges the instrument to be a will legally executed by one competent to make it and who had a home or property within the territorial jurisdiction of the court. Commonly, if not universally, an opportunity is given, either in the first instance or by appeal to a higher court, to have these questions tried before a jury.

The succession of particular persons to the property of the dead is not a matter of natural right. It rests upon positive law and is regulated by the authority of the government at its pleasure.[Footnote: United States v. Perkins, 163 U. S. Reports, 625.] Probate procedure is therefore wholly determined by local legislation and practice.

In many States, probate jurisdiction belongs to the county courts. In others it is invested in local courts for lesser subdivisions of territory with the purpose of cheapening the settlement of estates. In a few these local courts are very numerous, all the towns of the State being distributed into small groups and each furnished with its Probate Court, the judge of which, in many instances, has had no legal training, and receives no compensation except stated fees for such business as may actually come before him. An appeal is given from his orders to a higher court of general jurisdiction. In practice such a system works fairly well. If there are suitable lawyers in the group of towns forming a probate district, one of them who belongs to the prevailing party is generally made the judge if he will accept the office, and if he fills it well is apt to be re-elected, whichever party may then be uppermost. If a lawyer is not appointed and a case of any difficulty presents itself, the judge will probably consult some counsel in whom he feels confidence, and who will be sufficiently flattered by the request to advise him without making any charge for it.

The proper seat of administration is in the State and the local subdivision of the State where the dead man belonged. Proceedings there affect all his personal property wherever it may be found, and generally his real estate situated anywhere in the State. Real estate in another State can be affected by probate proceedings only if they take place there, by its authority. For that purpose "ancillary" administration is often taken out, that is, one designed to serve the interests of the general succession as administered in the seat of the principal administration.

Since the right of a personal representative to act for the estate of the dead comes from the positive law of the particular sovereign having the proper jurisdiction, and since no law of a particular sovereign can be enforced, by virtue of his power or anything dependent on it, outside of his territorial jurisdiction, it follows that no executor or administrator can of right maintain a suit, as such, out of the State from the laws of which he derives his authority. He may take possession of the goods of the estate found in another State, or collect debts due from its citizens if no objection be made, but if forced to claim the aid of judicial process he must first prove his title there before the appropriate Probate Court by taking out ancillary administration, in which case he will probably be compelled to give security for the proper discharge of his duties under such appointment.

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CHAPTER XVI

BANKRUPTCY AND INSOLVENCY COURTS

It is within the power of Congress to assume the exclusive regulation of bankruptcy proceedings throughout the United States.[Footnote: U. S. Constitution, Art. I, Sec. 8.] There is in this country no real difference in meaning between the terms bankruptcy and insolvency. Each denotes a status into which one unable to pay his debts, as and when they fall due, may put himself, or be put by his creditors. The remedy is not confined to any particular classes of persons, and no more fault is implied on the part of one who is adjudged a bankrupt than on the part of one who is adjudged an insolvent.