1 Chand. 136 | Wis. | 1849
This case comes before us clothed with painful interest. Tbe untimely fate of tbe decedent, whose estate is sought to be administered upon, not less than tbe unhappy difference which arose in regard to its management so soon after bis death, are well calculated to admonish us of tbe uncertainty and worthlessness of earthly possessions.
Tbe members of this court bold in cherished recollection tbe character and public services of tbe late Thomas P. Burnett. His high standing as a member of tbe bar, bis position as reporter of tbe late supreme court, his ability and influence as a legislator and statesman, and especially Iris amiable private character, have induced a more than usually careful examination of this case, coupled with a deep anxiety to decide it in accordance equally with tbe principles of justice and law.
The last appointment was made from no new suggestion hi regard to the condition of the property or of the parties interested therein, and it would seem to us to have been made without necessity and without the > authority of law. No notice appears to have been given to the next of kin, as the statute requires, and the thirty days, within which it was the absolute right of the next of kin to appear and claim letters of administration, had not expired. This appointment was, in the highest degree, irregular, though not perhaps entirely void; it was therefore the duty of the judge of probate at the earliest day possible to correct the error'; if he had the power to do so.
The letters were continued in force, and the administrators acting under them made and filed an inventory and performed various other official acts until the 26th day of January, 1847, when they were revoked. The order of revocation was made on the petition of William Burnett, the brother, and Joseph H. D. Street, the husband of a sister of the deceased. A full and careful examination of the rights of the parties and of
The granting of letters, as we have before seen, to Brunson and Patch, was irregular, and the first question which demands consideration is, whether the judge of probate had power and right to revoke them. It was strenuously urged in argument that this officer, acting under a special and limited jurisdiction, and being in fact the mere creature of the statute, had no right or authority to review or reverse his own acts. To a limited extent only is the assumption on which the argument rests well founded. Probate courts are only, in a qualified sense, the mere creatures of the statute. They are, as truly as any other judicial tribunals, the offspring of the common law. They existed in substance in England before the usurpation of the ecclesiastics snatched from the crown this rightful portion of its authority as the fountain of justice, and changed their form and mode of proceeding. And ever since they fell into the hands of the church, they have been yielding to the modes and principles of the common law, as successive statutes have been called into existence by the necessities of the case to protect the liberty and property of the British people. The statutes relating to these courts are therefore the instruments employed to restore them to their original character rather than the creative power which conferred their jurisdiction. In England the ecclesiastical courts have always exercised the power of revocation. Comyn’s Dig., title, Administrator, B. 8 ; 1 Salk. 38 ; Bacon’s Abr., title, Administrator. And in that country, as in most, if not all, the states of the Union, they are courts of record, either by express
If, therefore, there was a will made by the deceased, Thos. P. Burnett, capable of being proved, and the same had been exhibited in the probate court by the executors, and allowed and approved accordingly, it would have become the duty of the court, by legal inference and from the necessity of the case, to revoke the letters first granted.
This brings us to another question raised and urged by the plaintiffs in error, and far the most delicate and difficult to which our attention is drawn, to wit: “Whether the evidence taken before the judge of probate, which fully appeal’s in the bill of exceptions, shows that the deceased, during the last day of his life, made and published a nuncupative will.
Nuncupative or unwritten wills were known to both the common and civil law (1 Inst. 24; Swinburne on Wills,
And it may be laid down as a proposition, universally sustained by the courts, that to entitle a nuncupative will to probate, all the provisions of the law must be strictly complied with. 4 Rawle, 46; 29 Johns. 503.
In reference to the parties claiming to have the present will allowed, and to have been appointed executors under it, it has been alleged that they are estopped from setting it up against the next of bin, or others interested in the estate, by their own acts. And were Brunson and Patch alone to be considered, we should have no hesitation in saying that the application on their part, for letters of administration, and their
Such a man, on such an occasion, would have used solemn forms and precise, if not technical, language. He would, at least, have used the language of the law, when that was the most simple, the most expressive, and as familiar to him as household words.
The entire absence of such words and of such forms is conclusive evidence to us of the entire absence of any intention on his part to make a will; more than this, it is proof positive of a design not to do so ; of a purpose to speak in terms which, to those who knew him and understood legal phraseology, would evince his design to avoid the very thing which it is now assumed he intended.
Entertaining these views of the whole case, we are satisfied that the judgment of the court below ought not to be disturbed.
Yet this can now be of no great importance, as the debts of the estate must be nearly paid off, and the personal assets will soon be collected or converted into money and ready for distribution, when a final close of administration will be made. In the meantime, and at all times, the real estate must continue under the charge of the general guardian.
Judgment affirmed, with costs.