PROBATE OF WILLS. The proof of a will of personal property must always be made in the probate court. But in England the pro bate of the will is not evidence in regard to real estate. Iu most of the American states the same rule obtains in regard to real as to personal estate,—as that court have exclusive jurisdiction, in most of the states, in all mat ters pertaining to the settlement of estates. 9 Coke, 36, 38 a; Fonblanque, Eq. b. 4, pt. 2, c. 1, I 2 ; 4 Term, 260 ; 1 Jarman, Wills. 218; 8 N. H. 124; 12 Mete. Mass. 421 ; Ohio, 5 ; 3 Gill, Md. 198 ; 20 Miss. 134; 23 Conn. 1. The probate of the will gives effect to a devise in most of the states, but that gives it operation from the death of the tes tator. 2 Story, C. C. 327; 11 Me. 127; 3 N. H. 517 ; 4 McLean, C. C. 75. In some of the states the English rule prevails that the probate of the will has no effect as to devises 'of real estate. 12 Johns. N. Y. 192 ; 14 id. 407; 5 Rawle, Penn. 80; 1 Nott & M'C. So. C. 326.
The probate of a will has no effect out of the jurisdiction of the court before which probate is made, either as to persons or pro perty in a foreign jurisdiction. 8 Ves. Ch. 44; 1 Johns. Ch. 'N. Y. 153 ; 12 Vt. 589 ; Story, Confl. Laws, fe 512-517. But the in dorsement of negotiable paper by the exe cutor or administrator in the place of his ap pointment will enable the indorsee to main tain an action in a foreign state upon the paper in his own name. 9 Wend. N. Y. 425. But see 5 Me. 261 ; 2 N. H. 291, where the rule is held otherwise. The executor may dispose of bank-shares in a foreign state with out proving the will.. 12 Mete. Mass. 421.
1.2. Any person interested in the will may compel probate of it by application to the probate court, who will summon the executor or party having the custody of it. 4 Pick.
Mass. 33 ; 3 Bacon, Abr. 34, Executors. The judge of probate may cite the executor to prove the will at the instance of any one claiming an interest. 4 Pick. Mass. 33 ; 1 Williams, Ex. 201; 1 Jarman, Wills, 224. The attesting witnesses are indispensable, if the contestants so insist, as proof of the exe cution and authenticity of the will and the competency of the testator, when they can be had. 2 Greenleaf, Ev. 691, 692 ; 1 Jarman, Wills. 226, and note. But if all or part of the subscribing witnesses are absent from the state, deceased, or disqualified, then their handwriting must be proved. 9 Yes. Ch. 381; 19 Johns. N. Y. 186 ; 1 Jarman, Wills, 226, and notes. And see 17 Ga. 364 ; 9 Pick. Mass. 350; 6 Rand. Va. 33. It will be presumed that the requisite formalities were complied with when the attestation is formal, unless the contrary appear. 8 Md. 15 ; 11 N. Y. 220 ; 30 Penn. St. 218; 1 Jar man, Wills, 228, and notes. But it has some times been held that no such presumption will be made in the absence of a subscribing witness who might be called. 19 Johns. N. Y. 386. Wills over thirty years old, and appear ing regular and perfect, and coming from the proper custody, are said to prove themselves. 1 Greenleaf, Ev. a 21, 570 ; 2 Kay & J. Ch. 112. See, also, 2 Nott & M'C. So. C. 400. Wills lost, destroyed, or mislaid at the time of the testator's death may be admitted to pro. bate upon proper proof of the loss and of the execution. 1 Phill. Reel. 149 ; 1 Green, Ch. N. J. 220; 1 Jarman, Wills, 231, note.