PROBATE Or A WILL. The proof before an officer authorized by law that an instrument offered to be proved or recorded is the last will and testament of the deceased person whose testamentary act it is alleged to be.
2. Jurisdiction. In England, the ecclesi astical courts were the only tribunals in which, except by special prescription, the validity of wills of personal estate could be established or disputed. Hence, in all courts, the seal of the ecclesiastical court is conclu sive evidence of the factum of a will of per sonalty ; from which it follows that an exe cutor cannot assert or rely on his authority in any other court, without showing that he has previously established it in the spiritual court,—the usual proof of which is the pro duction of a copy of the will by vvhich he is appointed, certified under the seal of the or dinary. This is usually called the probate.
The ecclesiastical courts have no jurisdic tion of devises of lands; and in a trial at common law or in equity the probate of a will is not admissible as evidence, but the original will must be produced, and proved the same as any other disputed instrument. This rule has been modified by statute in some of the United States. In New York, the record, when the will is proved by the subscribing witnesses, is prima facie evi dence, and provision is made for perpetuating the evidence. See 12 Johns. N. Y. 192 ; 14 id. 407. In Massachusetts, Connecticut, Icorth Carolina, and Michigan, the probate is conclusive of its validity, and a vvill cannot be used in evidence till proved. I Pick. Mass. 114 ; 1 Gall. C. C. 622 ; 1 Mich. Rev. Stat. 275. In Pennsylvania, the probate is not conclusive as to lands, and, although not allowed by the register's court, it may be read in evidence. 5 Rawle, Penn. 80.
— In North Carolina, the will must be proved de novo in the court of common pleas, though allowed by the ordinary. 1 Nott & M'C. So. C. 326. In New Jersey, probate is necessary,
but it is not conclusive. 1 Penn. N. J. 42. See LETTERS TESTAMENTARY.
3. The effect of the probate in this coun try, and the rules in regard to jurisdiction, are generally the same as in England ; but, as no ecclesiastical courts exist in the United States, probate is granted by some judicial officer, who performs the part of the ordinary in England, but generally with more ample powers in relation to the administration of the estate. SOO SURROGATE; LETTERS TESTA. MENTARY.
The proof of the will is a judicial proceed ing, and the probate a judicial act. The party propounding the instrument is termed the proponent, and the party disputing, the contestant. In England, proof ex parte was called probatq in common form, and proof on notice to the next of kin, proof in solemn form. In the United States, generally speak ing, proofs are not taken until citation or notice has been issued by.the judge to all the parties interested to attend. On the return of the citation, the witnesses are examined, and the trial proceeds before the court. If the judge, when both parties have been heard, decides in favor of the will, he admits it to probate ; if against the will, he rejects it, and pronounces sentence of intestacy.
4. More than one instrument may be proved ; and where the contents of two or more instruments are not wholly inconsistent with each other, they may all be admitted as together constituting the last will and tes tament of the deceased. Williams, Exec. 281.
On the probate the alleged will may be contested on any ground tending to impeach its validity : as, that it was not executed in due form of law and according to the requisite statutory solemnities ; that it was forged, or was revoked, or was procured by force, fraud, misrepresentation, or undue ‘influence over a weak mind, or that the testator was incompetent by reason of idiocy or lunacy.