sion of the jurisdiction of the United States courts, seems not to have been fully determined.25 But upon principle it would not seem competent for the several states to exclude the jurisdiction of the national tribunals in matters of this kind, any more than in common-law actions. But the mode of enforcing remedies in the United States courts will undoubtedly be attended with some embarrassments. And where the state laws provide that suits pending at the decease of a debtor, whose estate is represented insolvent, shall be discontinued and brought before the commissioners of insolvency, we do not see but this, if binding at all, must extend to the national courts, the same as a statutory bar. (3.) It would seem to be the established rule, however, in the national tribunals, to allow a foreign creditor to pursue his claim to judgment there, without regard to state laws, conferring exclusive jurisdiction in the settlement of estates upon particular state courts or commissioners. But such judgments must be brought into the Probate Court before any distribution is there decreed, or else it would seem impracticable to entitle them to an equal share in the distribution, where the assets proved insufficient to pay all the creditors. (4.) But in a case where all the creditors had been paid, and the administrators still held assets in their hands, the creditor, having recovered judgment in the courts of the United States, was held entitled to maintain a bill in equity in those courts to enforce the payment of his judgment before any distribution to the heirs, notwithstanding such judgment had not been presented before the commissioners of insolvency appointed to audit all the claims against the estate, and the provision in the state statutes that all claims not presented to such commissioners should be forever barred after a certain time, which in this case had already expired.26 25 Green's Admx. v. Creighton, 23 How. 90, 107. 26 The Union Bank of Tennessee v. Jolly's Admr. 18 How. 503; Green's Admx. v. Creighton, 23 How. 90. (5.) The question of the right of those claiming title through deceased parties to maintain an action in a foreign forum to enforce those rights, without having taken letters of administration there, was extensively discussed, in a recent case, before the Court of Common Pleas, where it was held, that the widow of a French subject, who became donee of the universality of the real and personal estates of the succession of her husband, and in whom as such all his rights, by the law of France, vested, and who was entitled to enforce the same in her own name, and who also became liable for all her husband's liabilities, and who was compelled to pay the amount of certain bills of exchange, of which her husband was drawer and the defendant acceptor, and who had recovered judgment thereon in France against the defendant; was not bound to take out letters of administration in England in order to entitle her to maintain an action upon such judgment.27 (6.) The last case seems to go upon the ground that the plaintiff claimed in her own right, and not in the right of the deceased. This might have been placed upon the mere ground of judgment recovered in the name of the plaintiff. But the court placed the case mainly upon the ground that the plaintiff, by paying the debts of her husband, had become the owner, in her own right, of all the effects belonging to his estate, and might enforce those rights in her own name. This may be true of personal estate in possession of a foreign executor, and which is afterwards converted in a foreign state,28 but is more questionable in regard to choses in action, which can only be sued by some personal representative of the deceased, appointed by the probate courts in the forum where the action is brought.29 (7.) A question has arisen in regard to the comparative authority of the state and national tribunals, in declaring the law of a particular state or district, in which those courts hold concurrent jurisdiction.30 And in a matter of general jurisprudence, where the national court of last resort had presumed to disregard the authority of the state courts,31 in such cases, and had virtually overruled the decision of the state court, after the principle had been acquiesced in for more than thirty years, and the very case for nearly twenty years, and when it was only collaterally before them, the decision in the national court was dissented from by three judges, and was so manifestly a departure from its usual course, and so much a usurpation of authority over the state courts, that it was not and could not be followed by the state courts, without a virtual surrender of their independent action. While it is probable enough that the decision of the national court may be just and equitable as to the private rights involved in the particular case, it seems quite certain that the principle involved, or claimed to be involved, of disregarding the authority of the court of last resort in the state, as to what the law of the state is, cannot fairly be maintained. SECTION III. THE MODE OF PROOF OF WILLS BEFORE THE COURT OF PROBATE. 1. Cases divided into contentious and non-contentious; or, those in common form, and those in solemn form. n. 1. Summary of the English practice, and present rules and orders of court. 2. When proof is made in common form, and when in solemn form. 3. Mode of proceeding where proof in solemn form is desired. 4. The American practice, in non-contentious matters, should be more simple. 5. The general practice here is to require the attendance of one of the witnesses. 30 Towle v. Forney, 14 N. Y. Ct. App. 423. Clarke v. Van Surlay, 15 Wendell, 436; s. c. 20 Wendell, 365; S. P. Matter of Bostwick, 4 Johns. Ch. 100. Williamson v. Berry, 8 How. U. S. 495. 6. Witnesses to wills should not be required to attend court, unless objection to will. 7. One witness sufficient, if he remember all the requisites to valid execution. 8. Witnesses not obtainable, signatures, and that of testator, may be proved. 9. The different degrees of certainty resulting from the testimony of the subscribing witnesses. 10. The extent of search required to admit secondary evidence. 11. Witnesses to will regarded as such from the attestation. 12. The rule in Equity stated somewhat differently. 13. The grounds for presuming the probate of a will stated. 14. When testator's knowledge of contents of will should be proved. 15. In New York the courts of probate annex conditions limiting the extent of the probate. 16. But they do not assume to reform the will. 17. Error of fact not affecting testamentary intention of no effect. n. 21. New York cases considered. 18 and n. 25. Grounds upon which courts of equity compel discovery in aid of the proceedings of probate court. 19. Greater necessity for circumspection as to testator's knowledge of contents of will, where he is deaf and dumb, or blind. 20. The will should be proved in place of domicil, without regard to the locality of the personal estate. § 3. 1. THE English courts of probate, both while that jurisdiction was retained in the ecclesiastical courts and in the present Court of Probate and Matrimonial Causes, make a formal division of causes for the proof of wills, into those in common form and those in solemn form; the distinction embracing the two classes of cases which with us are more commonly called contested and non-contested cases.1 I 1 Under the present English statute, 1 Vic. ch. 26, § 9, any will having a perfect attestation clause and the requisite number of witnesses may be admitted to probate, upon the affidavit of the executor alone, that he believes it to be the last will and testament of the deceased. If the attestation clause is defective, the affidavit of one of the witnesses is required. If the affidavit proves the execution to have been in fact regular, probate may be allowed; if not, intestate administration is granted. The rules established in the Court of Probate in England, under the preceding statute, in 1858, divide all business into two classes, -"contentious" and "non-contentious business." The mode of proceeding is much the same as already indicated. The application for probate and for let 2. But the distinction is not precisely the same as that between contested and non-contested cases with us, since in the ters of administration is made to the registrar of the courts in the several districts where the decedent had his domicil at the time of his decease; or where he had no such domicil in any district, to the principal registry, in all cases. Upon receiving the will the registrar inspects the same, to find if all the statutory requisites have been complied with, and the attestation clause is regular. If any defect appear, it must be supplied by affidavit of one of the witnesses; or in default of that, by the next best evidence attainable. The defect being thus supplied, the affidavit forms part of the probate, that all may appear regular upon the face of the probate. The will appearing regular upon its face, or any apparent defects being supplied, the registrar examines to find if there are any interlineations or alterations; if so, proof must be given of their being made before execution, unless they are noted before the attestation of the witnesses, or in the margin, and attested by the initials of the witnesses' names, or else there must be proof of the re-execution of the will, or the valid execution of a codicil subsequent to making the interlineations or alterations. In default of their being accounted for in one of these modes, they will form no portion of the probate; but the probate will be enrolled, with the erased words, if legible, and if not legible, with blanks for the erasures, the interlineations being wholly omitted. If any doubt arise upon any of these points, the registrar communicates with the principal registry, and obtains the advice of the judge how to proceed. If everything is made satisfactory, the probate is allowed. Papers referred to, or where there is any indication that any paper has been attached to the will, and subsequently separated from it, such papers must be produced, or satisfactorily accounted for. Wills merely in execution of a power will not be admitted to probate without consulting the judge and having his specific directions. By the established rules of the English Court of Probate the executor may be put to the proof of a will in solemn form, by the filling of a caveat in the Court of Probate for the district where the testator was domiciled at the time of his decease, requiring notice to the person filing the same of any application for probate, who must be either the next of kin or some one interested under the will. This caveat remains in force for six months, and must then be renewed. If application is made for probate after the filing of such caveat, the registrar gives the person filing the same warning of the application by letter addressed to the place specified in the caveat, conveyed through the post-office. And upon the party answering to the warning," the matter shall be entered as a |