PROBATE OF WILLS. The proof of a will of personal property must always be made in the probate court. But in England the probate of the will is not evidence in re gard to real estate. In most of the states the same rule obtains in regard to real as to personal estate—as the probate court has ex clusive jurisdiction, in most of the states, in all matters pertaining to the settlement of estates ; 9 Co. 36, 38 a; 4 Term 260; 1 Jarm. Wills 118 ;. Poplin v. Hawke, 8 N. H. 124 ; Hutchins v. Bank, 12 Mete. (Mass.) 421; Swazey's Lessee v. Blackinan, 8 Ohio 5.
As the authority to make wills is derived from the state, matters of probate are not strictly within the federal jurisdiction. But where the state law, by statute or custom, gives to the citizens of the state in a suit in ter partes a right to question at law the pro bate of a will, or to assail it in equity, the federal courts, in administering the rights of citizens of other states or aliens, will en force such remedies ; but such suit must re late to independent controversies and not to such merely as might arise on an application for probate, or a mere method of procedure ancillary to the original proceeding ; Farrell v. O'Brien, 199 U. S. 89, 25 Sup. Ct. 727, 50 L. Ed. 101.
A will refused probate for want of testa mentary capacity in the state of testator's domicil has been admitted to probate in an other state where lands passed under it ; Rice v. Jones, 4 Call (Va.) 89 ; and see Suc cession of Gaines, 45 La. Ann. 1237, 14 South. 233. See PROBATE OF A WILL.
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 prop erty in a foreign jurisdiction ; 8 Ves. Ch. 44 ; Morrell v. Dickey, 1 Johns. Ch. (N. Y.) 153 ; Ives v. Allyn, 12 Vt. 589 (but see supra, under MODE OF EXECUTION).
In regard to the probate of wills passing realty, the len rei sitce governs ; personalty is controlled by the len domicilii; Whart. Confi. Laws §§ 570, 587, 592 ; Schultz v. Dambmann, 3 Bradf. Sur. (N. Y.) 379 ; Story, Confi. Laws §§ 69, 431; 10 Moore, P. C. 306. But the indorsement of negotiable paper by the executor or administrator in the place of his appointment will enable the indorsee to maintain an action in a foreign state upon the paper in his own name ; Robinson v. Crandall, 9 Wend. (N. Y.) 425. But see
Stearns v. Burnham, 5 Greenl. (Me.) 261, 17 Am. Dec. 228 ; Thompson v. Wilson, 2 N. H. 291, where the rule is held otherwise. The executor may dispose of bankshares in a for eign state without proving the will there ; Hutchins v. Bank, 12 Mete. (Mass.) 421.
Any person interested in the will may com pel probate of it by application to the pro bate court, who will cite the executor or par ty having the custody of it ; Stebbins v. Lathrop, 4 Pick. (Mass.) 33 ; 3 Bacon, Abr. 34. Enecutors. The judge of probate may cite the executor to prove the will at the in stance of any one claiming an interest ; Steb bins v. Lathrop, 4 Pick. (Mass.) 33 ; 1 Jarm. Wills 224. The attesting witnesses are indis pensable, if the contestants so insist, as proof of the execution and authenticity of the will and the competency of the testator, when they can be had ; 2 Greenl. Ev. § 691; 1 Jarm. Wills 226. But if all or part of the subscribing witnesses are absent from the state, deceased, or disqualified, then their handwriting must be proved; 9 Ves. Ch. 381; Jackson v. Le Grange, 19 Johns. (N. Y.) 386, 10 Am. Dec. 237; 1 Jarm. Wills 226. And see Walker v. Hunter, 17 Ga. 304; Hawes v.
Humphrey, 9 Pick. (Mass.) 350, 20 Am. Dec. 481; Smith v. Jones, 6 Rand. (Va.) 33. It will be presumed that the requisite formali ties were complied with when the attestation is formal, unless the contrary appear ; Welty v. Welty, 8 Md. 15; Lewis v. Lewis, 11 N. Y. 220 ; Vernon v. Kirk, 30 Pa. 218; 1 Jarm. Wills 228 ; Burkett v. Whittemore, 36 S. C. 428, 15 S. E. 616. But it has sometimes been held that no such presumption will be made in the absence of a subscribing witness who might be called ; Jackson v. Le Grange, 19 Johns. (N. Y.) 386, 10 Am. Dec. 237. While the probate of a will settles the question of due execution, it does not establish validity, or determine its force and effect upon titles to real estate claimed under it ; Ware v. Wisner, 50 Fed. 310. Wills over thirty years old, and appearing regular and perfect, and coming from the proper custody, are said to prove themselves ; 1 Greenl. Ev. §§ 21, 570. See LOST INSTRUMENT.
In most of the states statutory provision has been made for proving foreign wills by exemplified copy ; 3 Jarm. Wills (Rand. & Talc. edition) 725, note.