The American JudiciaryBaldwin, Simeon E. (Simeon Eben)
History
The American Judiciary
Baldwin, Simeon E. (Simeon Eben)
Courts -- United States; Law -- United States -- History
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.
* * * * *
CHAPTER XVI
BANKRUPTCY AND INSOLVENCY COURTS
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