course may not be pursued here. But it has been held that the court cannot, even with the consent of all parties interested, expunge from the probate any parts of the will which constitute operative portions of the instrument. But offensive passages have sometimes been allowed to be omitted from the probate, where the omission does not change the legal effect. 8 3. It sometimes happens that several executors are appointed with separate functions and powers, one for one portion of the estate, and one for another; or one for one state, and one for another; or one until a certain event, and then the duty to devolve upon another. In such cases, the court make one probate, and grant letters to the several executors according to their respective functions. 10 And where the executor is appointed only to perform a single act or function, and by a distinct instrument the remainder of his estate is disposed of, the English courts of probate make two distinct probates.10 But with us the entire will must be proved and registered as one instrument, and the letters testamentary may apportion the different duties of the executors and the administrator with the will annexed. Probate of the will cannot be granted while there is a pending controversy in regard to a codicil; but the entire question must be settled before probate will pass, unless the controversy concerns the question of an additional co-executor, when it may, by consent, be reserved.11 4. And where the will is limited in its operation to some par instrument may fail with the essential portions thus rendered invalid. But see ante, pt. 1, pp. 181, 519. And where a will is lost and only a part of the contents can be proved, that portion may be admitted to probate. Steele v. Price, 5 B. Mon. 58. A will may become operative as a revocation of a former will, although inoperative in other respects, by reason of some extraneous considerations. Laughton v. Atkins, 1 Pick. 535, 548. But see Starr v. Starr, 2 Root, 303. Curtis v. Curtis, 3 Add. 33. See also Shuttleworth in re, 1 Curt. 911; Collins in re, 7 Notes of Cas. 278. ⚫ Wartnaby in re, 4 Notes of Cas. 476; 1 Rob. 423. 10 1 Wms. Exrs. 334, 335. "Miller v. Sheppard, 2 Cas. temp. Lee, 506; id. 246; 4 Notes of Cas. 149. ticular portion of the testator's estate, general administration of the remainder will be granted as of an intestate estate, but generally to the person named as executor in the will.12 5. When a will is proved, the original is deposited in the office of the registrar of the court of probate, and a copy of the same, under the seal of the court, together with a certificate of it having been proved, is delivered to the executor, together with letters testamentary; and the copy and certificate constitute what is usually called the probate, which, in strictness, should be enrolled in the registry of the court; 13 it is requisite, of course, where the will is in a foreign language, that the probate should contain a translation of the same into English. But in L'Fit v. L'Batt,14 where the will was in French, and under it, in the same probate, the will was translated into English, but it appeared to be falsely translated; it was objected, that the translation was part of the probate, and could not be varied except by application to the court of probate; the court held, that nothing but the original is part of the probate, and that the probate court had no power to make a translation, and that where there was a mistranslation the court of chancery might determine according to what the translation ought to be. 6. It seems to be settled, that where the probate court decline to proceed in the probate of a will, or to give the executor letters testamentary, having no justifiable excuse therefor, the superior courts, by mandamus, will compel the probate court to proceed in the matter.15 1 Wms. Exrs. 337; Toller, 67. 23 1 Wms. Exrs. 337, 338. 14 1 Peere Wms. 526. "Marriot v. Marriot, 1 Strange, 666, 672; Rex v. Raines, 1 Ld. Ray. 361. And it would seem, also, that where the probate court were proceeding to act in any matter, of which they clearly had no jurisdiction, a writ of prohibition might issue against it. But in the American practice such resort could be of little avail, since the question might be carried by appeal, or exceptions and writ of error, immediately, into the very court from which the writ of pro 7. All papers of a testamentary character- and this will include all papers, in whatever form, which are executed with the formalities required in the execution of wills, and which have reference to the disposition of one's estate after death must be proved in the probate court, and will constitute parts of the probate of the will, or the whole, as the case may be.16 And a codicil simply revoking former wills is testamentary, and must be so proved.17 And if the executor, after probate, discovers any testamentary paper, he ought, it is said, to bring it into the probate court, although it may not be indispensable to the correct understanding of the will, or may be merely in confirmation of it.18 And where the testatrix directed her executors to deliver certain sealed parcels to different persons named, without opening the parcels, it was held the executor could not with propriety do so, as he would thus be unable to make an inventory of the estate upon oath, and if the parcels contained valuable property, and thus, in effect, constituted legacies, he could not consent to them, until assured of the remaining assets being sufficient to pay debts. The court, therefore, ordered the parcels opened in the presence of the registrar of the court; and as they were found to contain bank bills of different denominations, a schedule of all, with the names of the several donees attached to the respective amounts, were made, and directed to be added as a codicil to the will, and probate decreed of the will and of all the aforesaid papers.19 8. A will merely in execution of a power requires to be proved in the probate court, the same as any other will.20 And where hibition must issue, so that it merely involves a choice of modes of procedure, whether one course or the other is pursued. 1 Wms. Exrs. 339, 340; Netter v. Brett, Cro. Car. 395, Berkley, J. 16 1 Wms. Exrs. 341; id. 89. "Brenchley v. Still, 2 Rob. 162; Laughton v. Atkins, 1 Pick. 535. 18 Weddall v. Nixon, 17 Beavan, 160; ante, pt. 1, pp. 261-268. 19 Pelham v. Newton, 2 Cas. temp. Lee, 46. 20 Tatnall v. Hankey, 2 Moo. P. C. C. 342, 351; Goldsworthy v. Crossley, 4 Hare, 140. there are two wills affecting the question of the execution of the powers, the probate court must determine which is in force, and to what extent the later one will revoke the earlier one.21 9. But a paper purporting to be a last will and testament, duly executed, but containing no more than the appointment of guardian to the testator's children, not disposing of personal estate, nor appointing an executor, is not entitled to probate.22 SECTION V. THE EFFECT OF PROBATE AND LETTERS OF ADMINISTRATION. 1. The decrees of the probate court, as to probate and letters of administration, conclusive. 2. But where the court have no jurisdiction, its decrees are void. Illustrations. 3. Discussion of the extent of equity jurisdiction over wills after probate. 4. One may be estopped, in pais, from procuring the revocation of a probate. 6. The probate establishes the words of the will; but not their force and effect. 7. The extent of the conclusiveness of letters of administration. 8. How far courts may look into the original will, in fixing its construction. n. 33. The views of V. C. Wood upon this question. 9. 10. 11. Summary of the American cases. § 5. 1. THE jurisdiction of the probate court being exclusive in regard to all matters pertaining to the settlement of estates of deceased persons, the decrees of such courts upon the probate of wills, and issuing letters testamentary, as well as of administration, are absolutely unimpeachable and conclusive in all other courts, both in law and equity.1 And such a decree cannot be impeached even by showing fraud, except by a petition to the 21 Hughs v. Turner, 4 Hagg. 30; ante, pt. 1, pp. 270, 271. Morton in re, 33 Law J. Prob. 87. 1 Noell v. Wells, 1 Sid. 359; Allen v. Dundas, 3 T. R. 125. See, also, Griffiths v. Hamilton, 12 Vesey, 298; 1 Wms. Exrs. 476. court rendering the decree, who may annul or modify the same.2 It cannot, therefore, be shown, collaterally, that another person was appointed executor, or that the testator was insane, or that the will was a forgery. And the same rule obtains, after the probate court have granted letters of administration to a particular person, as next of kin, all other courts are precluded from trying that question, however unquestionable the proof offered.* Hence it has been held in a modern case, that money paid to an executor who had obtained probate and letters testamentary upon a forged will, was a valid payment, notwithstanding the subsequent repeal of the probate and the appointment of the next of kin administrator.5 The reason here assigned is, that the debtor could not have defended against the suit of such executor, and he was not therefore obliged to wait for a suit, but might pay his debt to save costs. So where a probate was revoked, because the witnesses were incompetent, it was held, that the acts of the executor, before the recall, were valid, and that he might be cited to render his account.6 2. But the rule would be otherwise where the court had no jurisdiction of the case; as if probate and letters testamentary Archer v. Mosse, 2 Vernon, 8; Plume v. Beale, 1 P. Wms. 388. Noell v. Wells, 1 Sid. 359; 1 Wms. Exrs. 477. Bouchier v. Taylor, 4 Br. P. C. 708 (Toml. ed.); Barrs v. Jackson, 1 Phill. C. C. 582, reversing the same case in 1 Y. & C., C. C. 585. But if it appear from the proceedings in the case that the person was illegitimate, the decree might be regarded as obtained on false suggestion, and only prima facie valid. Long v. Wakeling, 1 Beav. 400. But in Wescott v. Cady, 5 Johns. Ch. 334, 343, Kent, Chancellor, said, upon the suggestion that the persons appointed were aliens, and had not qualified themselves to sue here: "The answer to this is, that letters of administration under the seal of the court of probate of this state are produced, and I am bound to presume omnia rite acta, and to give full credit to the judicial acts of a competent jurisdiction." See also Morrell v. Dickey, 1 Johns. Ch. 153; Pritchard v. Hicks, 1 Paige, 270; Colton v. Ross, 2 Paige, 396; Bogardus v. Clark, 4 Paige, 623; Burger v. Hill, 1 Bradf. Sur. Rep. 360. |