Chapter VII of the act of May 19th, 1853, "concerning courts of justice and judicial officers," provides as follows:

§ 61. There shall be in each county, a probate court with the jurisdiction conferred by this chapter. (Embracing sections 61 to 65 inclusive.)

§ 62. The county judge of each county shall be the judge of the probate court.

§ 63. The probate court shall have power to open and receive the proof of last wills and testaments, and to admit them to probate; to grant letters testamentary, of administration, and of guardianship, and to revoke the same for cause, shown according to law; to compel executors, administrators and guardians to render an account when required, or at the period fixed by law; to order the sale of property of estates or belonging to minors; to order the payment of debts due by estates; to order and regulate all partitions of property or estate of deceased persons; to compel the attendance of witnesses; to appoint appraisers or arbitrators; to compel the production of title deeds, papers, or other property of an estate, or of a minor; (a) and to make such other orders as may be necessary and proper, in the exercise of the jurisdiction conferred upon the probate court.

§ 64. The county judge shall have power in vacation, to appoint appraisers, to receive inventories and accounts to be filed in his court; to suspend the powers of executors, administrators, or guardians in the cases allowed by law; to grant special letters of administration or guardianship; to approve claims and bonds, and to direct the issuance from this court of all writs and process necessary in the exercise of his powers as probate judge.

§ 65. The county judge of the county of San Francisco shall hold a probate court, at the city of San Francisco, on the third Monday of January, March, May, July, September and November; provided, that each term of said court shall continue until the commencement of the next term, unless all the business of the court be sooner disposed of. In the other counties of the State, the county judge shall hold a probate court on the fourth Monday of each

month.

(a) Compare section 117 of the Probate Act, post. NOTE.-See act of Feb. 9th, 1860, Sess. laws, page 23, as to seal of court.

Amendment to Sec. 65, page 22, and the Act of May 18th, 1861,

on page 23.-Passed Feb. 10th, 1864.

[Took effect on passage.]

§ 1. There shall be in each year twelve terms of the Probate Court in the City and County of San Francisco, one of which terms shall commence on the first Monday of each month. Each term of said Court shall, either with or without intermediate adjournments, continue to the commencement of the next term.

§ 2. In case of the absence of the Probate Judge from the said Court upon any day upon which any petition, citation, notice, process, order, matter, or business whatsoever shall be made returnable to said Court, or may come on, or be set for hearing, examination, or determination therein, or be pending in said Court, no such petition, citation, notice, process, order, matter, or business, shall fail by reason of such absence, but the same, and the hearing, examination, or determination thereof, and all matter depending thereon or connected therewith, shall be continued to the next Monday thereafter, at the hour of twelve of the clock, meridian, and in case of the further continuation of such absence, shall be continued from Monday to Monday, at the same hour, until the said Judge shall be present in said Court, at the time to which any such continuance shall be made. The Clerk of said Court shall make an entry in the minutes of said Court of every such absence, and such entry shall be conclusive evidence of the fact of such absence, and of every continuance provided for by this Act. The Clerk may also enter a special continuance in every case or matter for which a continuance is by this Act provided, but the general entry before referred to shall be sufficient for all cases.

§ 3. Any deputy of the County Clerk of said city and county, no matter for what Court, duty, or business he may be particularly deputized or assigned, may act as his deputy in the Probate Court.

§ 4. An Act entitled an Act in relation to the Probate Court in the City and County of San Francisco, approved May eighteenth, eighteen hundred and sixty-one, and all Acts and parts of Acts inconsistent with this Act are hereby repealed.

unis act, are nereby repealed.

$5. This act shall take effect from and after its passage. Following the table of contents, ante, will be found a schedule showing the terms of court for each county in the State.

By the act of March 27th, 1858 (stat. of 1858, p. 95) entitled "An Act to give to the proceedings of courts of probate the same effect as courts of general jurisdiction," it is provided as follows:

§ 1. That the proceedings of the courts of probate, within the jurisdiction conferred on them by the laws, shall be construed in the same manner, and with like intendments, as the proceedings of courts of general jurisdiction; and that the records, orders, judgments and decrees of the said probate courts, shall have accorded to them like force and effect, and legal presumptions, as the records, orders, judgments and decrees of the district courts.

§ 2. This act shall take effect only upon proceedings had or taken after its passage.

The foregoing sections, together with those contained in the probate and guardian acts, comprise all the statutory provisions defining and specifying the jurisdiction and powers of the probate courts of this State; and to this statutory jurisdiction they are strictly limited. The supreme court has repeatedly held them to be inferior courts, of special and limited jurisdiction, incapable of exercising any powers, or administering any remedies, other than those expressly conferred, and prescribed by statute.

The act of 1858, though it does not at all enlarge the jurisdiction of the probate courts, essentially modifies the strictness of the doctrine laid down in some of the authorities, in reference to the effect of their proceedings, and their powers in the exercise of their acknowledged jurisdiction. (a.)

courts.

(a) The Jurisdiction and General Powers of Probate Courts.

In New York, and in some of the other States, certain incidental and constructive powers have been claimed for surrogate's courts, as essential to the due exercise of the jurisdiction expressly conferred by law, and as being to that extent inherent in all A section of the New York Revised Statutes, as originally enacted, declared that "no surrogate shall, under pretext of incidental power or constructive authority, exercise any jurisdiction whatever not expressly given by some statute of this State." (2 R. S., 1st ed., p. 221.) This restrictive clause was subsequently repealed, (Laws of N. Y., 1837, p. 536) and since such repeal, the exercise of powers not enumerated in the statute has been repeatedly sustained by the appellate courts of that State. Thus it has been held, that the surrogate had power to vacate or set aside an irregular or ex parte order made by him, instead of putting the party to his appeal; to open a decree taken by default; to enter an order nunc pro tunc, if by inadvertence it was not entered at the proper time, and the like. (See 9 Paige, 128; 10 Paige, 316; 1 Bradford's R., 283; 1 Barb. Ch. R., 452, and the cases noted infra.)

The following cases, most of them decided in the supreme court of this State, bear more or less directly upon this question, in regard to the general powers and authority of probate courts, where not expressly marked out and defined by statute.

The probate court is an inferior court, and cannot take jurisdiction or administer remedies other than those given in, and in the manner prescribed by, statute. Grimes Estate v. Norris, 6 Cal. 621.

II. THE DISTRICT COURTS.

THEIR JURISDICTION WITH REFERENCE TO PROBATE PROCEEDINGS.

Section 6 of Article VI of the Constitution provides that:

"The district courts shall have original jurisdiction, in law and equity, in all civil cases where the amount in dispute exceeds two hundred dollars, exclusive of interest. In all issues of fact joined in the probate courts, their jurisdiction shall be unlimited."

This section has been the subject of judicial construction by the supreme court. In the case of Reed et al. v. Mc Cormick, 4 Cal. 342, the court says:

"The sixth section of Article VI of the Constitution, which provides that in all issues of fact, joined in the probate courts, the

Probate courts are courts of inferior and limited jurisdiction, and in pleading their judgments it is necessary to set out the facts which gave jurisdiction. Smith v Andrews, 6 Cal. 652.

Proceedings in probate courts are summary and special, and must be in strict conformity with the law. Opinion in Beckett v. Selover, 7 Cal. 215.

The probate court is a court of special and limited jurisdiction. Though a settlement in the probate court is a final settlement, a complainant no party to it may treat it as a nullity, and invoke the equitable powers of the district court, and compel the administrator to a full account. Clark v. Perry, 5 Cal. 58.

The district courts of this State have the same control over the estates and persons of minors that the courts of chancery in England possess. This jurisdiction is conferred by the Constitution (article vi, section 6) and cannot be divested by any legislative enactment. And the claim of exclusive, original jurisdiction in courts of probate, over the same subject matter is unfounded. Wilson et al. v. Roach et al., 4 Cal. 362.

The probate judge is charged by law with the execution of special duties; he is not vested with plenary powers, but acts within an inferior and limited jurisdiction. Haynes v. Meeks, 10 Cal. 110.

There is no relation of inferiority in the Constitution or powers of the probate court as respects the district court. They are unlike; but within their respective spheres, equal. They are both constitutional courts. No appeal lies from one to another. Issues of fact are sent from the probate court to the district court, not as from an inferior to a superior tribunal, but for the sake of convenience, because the probate court has not the machinery of jury trial and its incidents. But it was never intended to transfer any portion of the jurisdiction of the probate courts to the district courts; nor was it designed by the act of 1855, directing these issues, to make the judgments of the district courts binding upon the courts of probate. Pond v. Pond, 10 Cal. 495.

The finding of a jury in a district court, upon an issue sent from the probate court, is merely in aid of the jurisdiction of the latter, by settling the facts, and thus furnishing the material upon which it is to act; and after such finding, the functions of the district court cease. Accordingly, where an administrator filed in the probate court his account for final settlement, and an issue of fact was made thereon, which was certified to the district court for trial, and trial was had, the jury finding upon each issue, and the judge

jurisdiction of the district courts shall be unlimited, does not give the district courts appellate jurisdiction from the probate courts. The word 'unlimited' qualifies the amount in value, and not the term 'original.' 'Issues of fact,' etc., refer to 'issues to be tried.'" And see Wilson et al. v. Roach et al., 4 Cal. 362; also, the opinion in Beckett v. Selover, 7 Cal. 215.

Section 19 of the Judicial Act (stat. 1853, p. 287) provides that, in all issues of fact joined in the probate courts, the jurisdiction of the probate courts shall be unlimited.

The language of this section follows that of Section 6 of Article

rendering his decision on such findings; and this was certified back to the probate court, which court refused to give effect to the decision and judgment of the district court, but gave judgment on such findings as it construed them: Held, that there was no error in the judgment of the probate court. Ib.

The jurisdiction of the probate court over probate matters is not exclusive. Most of its general powers belong peculiarly and originally to the court of chancery, which still retains its jurisdiction. And the district courts, as courts of chancery, may take jurisdiction of the settlement of an estate, when there are peculiar circumstances of embarrassment to its administration, and when the assuming jurisdiction would prevent waste, delay, and expense, and thus conclude by one action and decree a protracted and vexatious litigation. Deck v. Gerke, Admr., et al., 12 Cal. 433.

The probate court has jurisdiction to try and determine issues of fact arising in proceedings before it. And the issues of fact joined in the probate court, which are sent to the district court for trial, are of that class upon which the probate judge is unwilling to pass his judgment, or where from great conflict of evidence a reasonable doubt must exist in his mind, as to which side has the right. Keller v. Franklin, 5 Cal. 432. The allegations in a petition for administration are not sufficient to give the court jurisdiction, unless proper notice be given to bring the parties before the court. But if proper notice was in fact given, and the proof was merely defective, it would seem competent for the court to receive another affidavit of the clerk, and file the same nunc pro tunc. Beckett et al. v. Selover, 7 Cal. 215.

The facts of the death of the intestate, and of his residence within the county, are foundation facts, upon which all the subsequent proceedings of the court must rest. Unless these facts exist, the court can not make a single binding order in reference either to the subject matter or the person. Haynes v. Meek, 10 Cal. 110.

But when these facts do exist, every subsequent movement of the court is the exercise of jurisdiction over the subject matter, and over all persons who have been brought properly before it. Ib.

The probate court has no power to direct that the portion of an estate of an intestate originally allotted to one of the heirs at law, a nonresident heir, shall be distributed among the other heirs, if the nonresident heir shall fail to appear and claim it within a year. The money should be paid into the State Treasury until claimed by the owner or his representatives. Pyatt v. Brockman, 6 Cal 418.

The power of the probate judge, to remove in his discretion an administrator for any of the causes named in the statute, will not be interfered with by the appellate court, unless it should be clearly shown that there has been gross abuse of discretion. Deck's Estate v. Gherke, 6 Cal. 666.

Letters of guardianship of a lunatic, issued by a probate court, cannot be questioned in a collateral proceeding. Warner et al. v. Wilson, 4 Cal. 310.