"In a great majority of the States the original equitable jurisdiction over administrations is in all ordinary cases—without any special cir cumstances such as fraud, or without any other equitable feature such as trust—either expressly or practically abrogated. The courts of equity, in the absence of such special circumstances or distinctively equitable features, either do not possess or will not exercise the jurisdiction, but leave the whole matter of administrations to the special probate tri bunals" . . . so that "unless the case involves some special feature or exceptional circumstances of themselves warranting the interference of equity, such as fraud, waste, and the like, or unless it is of such an essential nature that a probate court is incompetent to give adequate relief, or is one of which the probate court having taken cognizance has completely miscarried and failed to do justice by its decree, the courts of equity will refuse to interpose and to exercise whatever dormant powers they may possess, but will leave the subject matter and the parties to the statutory forum which the legislature plainly regarded as sufficient and intended to be practically exclusive" (Rice's Probate Law, pp. 4 and 5). For the old law on probate, see G. W. Marshall, Ancient Courts of Probate (1895).
Jurisdiction as to wills and their probate as such is neither in cluded in nor excepted out of the grant of judicial power to the courts of the United States (i.e., the Federal as distinguished from the State courts). So far as it is ex parte and merely administra tive it is not conferred, and it cannot be exercised by them at all until in a case at law or in equity its exercise becomes necessary to settle a controversy by reason of the (diverse) citizenship of the parties. An action to set aside the probate of a will of real
estate may be maintained in a Federal court when the parties on one side are citizens of a different State from the parties on the other side (Ellis v. Davis, 109 U.S. Reports, 485). Probate in solemn form, i.e., after due notice to all parties in interest is the almost universal form in use in the United States. One reason for this no doubt is that all documents affecting title to real estate must be recorded and probate in solemn form concludes all parties to the proceeding and thus tends to establish the title to all real estate passing under the will.
In the United States wills of real property must be separately proven in the proper probate court in each State in which the real property is situated, unless statute dispenses with separate probate (each State being "foreign" to every other for this purpose). Copies of such will and probate should be filed also in the office of the register of deeds of each county in the State in which any real property belonging to the testator is situated.
In the State of New Jersey it has been held that an unprobated will is capable of conveying an interest in the property devised, and when a conveyance is made under a power in the will before probate, a subsequent probate validates the conveyance (1906, Mackey v. Mackey, 63 AU. Rep. 984).
In Illinois a court of equity has no inherent power to entertain a bill to contest a will (1906, O'Brien v. Bonfield, 220 Ill. Rep. 219).
In Missouri a foreign (New York) will of real estate in Mis souri, probate of which was duly recorded in Missouri, cannot be collaterally attacked, and cannot be set aside by direct proceed ing of ter being filed for record more than five years in Missouri (1907 ; Cohen v. Herbert, 104 So. W. Rep.