PROBATE COURT (ante) is called in some states orphans' court, in others surro gate court; and in many of the southern states the probate functions are exercised by a county officer called the ordinary, the name of that officer being taken from the English ecclesiastical law. The powers of probate courts differ greatly in the several states; in all the rule exists that a will cannot pass real or personal estate until it has been proved in due form by the court of probate. The English law that a probate of a will is not admissible as evidence in common-law courts has been modified or abrogated in many states. From the probate an appeal lies to a higher court; and if this be neglected, it is not competent for a party to go into a court of common law with questions as to the sanity or capacity of the testator, or of the proper execution of the testament. Many probate courts, however, are without any authority as to the construction or effect of a will, their jurisdiction extending to the probate proper only. There are two methods of probate, that "in common form" where the proceedings are ex part and Without notice to the next of kin or legatees; and proof in "solemn form," where notice is given to all parties interested, and they are given an opportunity to be heard. In the former case any party interested in the premises has the right to call upon the executor to make proof in "solemn form" any time within 30 years after the first probate. The probate in solemn form is the usual method in this country, and in some states is required by statute. When once approved after a hearing of this kind the will is binding. The
party presenting the will is called the proponent, and a disputing part' the contestant. The question before the court is whether the document presented is or is not a will. In the United States citation or notice is generally issued by the court to all interested. The most important testimony is that of the attesting witnesses. If, on account of death, absence, or incompetency, a witness cannot be produced, the will may be proved by the other witnesses and testimony of the handwriting of the absent. If all are dead or absent, the handwriting of all must be proved. The capacity of the testator cannot be impeached by an attesting witness without suspicion. The presumption is that if the attestation clause be properly drawn, the requirements as to the subscribing witnesses have been fulfilled, though, as is often the case, they may have forgotten what was said or clone on the occasion. A will is said to prove itself 30 years after the death of the testator; nothing is then necessary but its production and presentment to the court. It must, however, be clear from all suspicion of forgery, and come from a trustworthy source. The contents of a will which has been lost, stolen, or destroyed may be proved in the probate court, but the evidence must be very clear and strong.