Page:The American Cyclopædia (1879) Volume XIV.djvu/31

 PROBATE 23 doing duty on board (including the fleet cap- tain), and borne upon the books of the ship, in proportion to their respective rates of pay in the service. No commanding officer of a fleet or squadron shall be entitled to receive any share of prizes captured by any vessel or vessels not under his command, nor of such prizes as may have been captured by any ships or vessels intended to be placed under his command, before they have acted under his orders ; nor shall the commanding officer of a fleet or squadron, leaving the station where he had command, have any share in the prizes taken by ships left on such station after he has gone out of the limits of his said com- mand, nor after he has transferred his com- mand to his successor. No officer or other per- son who shall have been temporarily absent on duty from a vessel on the books of which he continued to be borne, while so absent, shall be deprived, in consequence of such absence, of any prize money to which he would otherwise be entitled. And he shall continue to share in the captures of the vessel to which he is at- tached until regularly discharged therefrom." PROBATE, in law, the proof, before the com- petent authority, that an instrument offered purporting to be the last will and testament of a person deceased is indeed his lawful act. Until the act 20 and 21 Victoria, c. 77 (1857), amended the law relating to probates and let- ters of administration in England, the custody of the estates of all deceased persons vested there primarily in the ordinaries or bishops of dioceses, subject only to the exceptional rights of the crown or of lords in respect to certain manors. The new act of 1857 abolished the ancient ecclesiastical jurisdiction, and conferred full and exclusive authority over all testamen- tary causes upon the queen, to be exercised in her name in a court to be called the court of probate. Ecclesiastical courts never existed in the United States ; but . from the very set- tlement of the country the office and functions of the English ordinaries have been exercised here by similar officers under various titles, such as surrogate, register of wills, judge of probate, and ordinary, and generally with larger powers than those functionaries possessed. In some states the county courts, and in others the orphans' courts, grant letters of probate. These several judicatures have different pow- ers, some only concerning themselves with the factum of a will, leaving its construction, or the operation and effect of its particular provisions, to the courts of law ; but others are vested with complete jurisdiction of all matters pertaining to the administration, subject to appeal to some higher court. In England the rule has been that probate was necessary of such instruments only as were testamentary and regarded personal property. If they af- fected lands alone they needed not to be proved in the spiritual courts. In this country the general rule by statute is that no will is effec- tual to pass either real or personal estate unless it has been duly proved and allowed in the probate court ; and so long as the probate re- mains unreversed on appeal, the due execution of the will, the sanity or capacity of the testa- tor, and the attestation of the witnesses, cannot be called in question in the courts of common law. The same rule is in some states observed in respect to wills once admitted to probate, though they were made and executed in other states according to forms not sufficient where they were approved. In some states the pro- bate of wills of lands is prima facie evidence, but not conclusive, of the due execution of these instruments ; in others the probate be- comes conclusive in these respects after the lapse of a certain number of years. In most of the states the procedure of the court upon probate is fixed by the legislature, and the common law distinction between probate in common form and in solemn form has in great measure disappeared. A will is said to be proved in common form when the executor presents it to the court, and, without summon- ing any of the parties interested, calls one or more witnesses to prove its execution. The objection to this mode of proof was, at common law, that at any time within 30 years the ex- ecutor might be called upon by any party in interest to make proof in solemn form. Proof is made in solemn form, or by form of law or per testes, when all persons whose interests are to be affected by the will have been duly noti- fied to be present, and have had opportunity to be heard in the premises. This is now the usual mode of proof in the United States, and after the will is approved in this way it is for ever binding. The method of proof, however, like many other points of probate practice, is often regulated by particular statute provisions. The testimony which the judge calls for at the hearing relates to the factum of the will, as the phrase is. The question being whether the instrument is a will or not, it is of the first importance to inquire into the capacity of the testator, and whether he did in fact execute the alleged will as it purports to have been executed. It is to furnish evidence on both these points that disinterested persons are in- vited to witness the execution of a will. These attesting witnesses are then most essential par- ties in a question of probate. Generally all of them must be summoned if they are living within the process of the court ; but if from death or absence from the country, or from incompetency arising since the attestation, any witness cannot be produced, the will may be proved by the others and by proof of the hand- writing of the party who fails. If all are dead, or out of the court's jurisdiction, the handwriting of all must be proved ; and prob- ably in such a case the handwriting of the testator also. The attestation clause is gener- ally framed with a regard to the requirements which the statutes of the state where it is made render essential to the valid execution of a will. If the evidence of the witnesses