81 Me. 30 | Me. | 1888
A petition 'was filed in the probate court, asking the appointment of an administrator on the estate of Joseph Dawes, alleging that he “died intestate, possessed of goods remaining to be administered, leaving no widow.” The question presented by the exceptions is whether, under such a petition, an administration can be legally granted. The appellant contends that the petition on its face -fails to show that the judge had jurisdiction, because it does not aver either that the intestate died possessed of personal property of the value of at least twenty
The appellee contends that the petition implies that sufficient facts exist to warrant administration, that “property to be administered” means an amount exceeding twenty dollars, and that the statutes are satisfied by the proof to be furnished rather than by the allegations made.
, While we would not discourage formal and orderly proceedings in the probate court, we think that the technical strictness of allegation which the appellant invokes is not indispensable, and that his exceptions must be overruled. That court is not one of general or common law jurisdiction!, and formal pleadings are unknown in its- proceedure. Its practitioners are largely persons who do their own business before the court, or unprofessional persons whom their neighbors have employed to act for them.
.The appellant correctly contends that the records of the probate court must show that it had jurisdiction in the cases in which it acts. Still it does not necessarily follow that the petition shall aver everything which may be proved to authorize jurisdiction. We think the form of petition in this case is one which has been principally used in probate court practice in this state for many years, and still the form of allegation which the argument of the appellant prescribes as the correct one would no doubt be better pleading.
Why does not the record in this case indicate jurisdiction? The presiding judge found as a basis for Ms ruling all facts necessary to confer.jurisdiction, namely, that the intestate died leaving real estate to the value of at least twenty dollars, and owing debts of that amount. These findings will be as much a part of the record as the petition will be. The same findings should and it is to be presumed, will appear in the record of the court below. By R. S., c. 64, § 1, no administration is to be granted, “unless- it appears to the judge” that the requisite amount of estate was left by the deceased. The fact must be found by the judge whether alleged or not.
The cases cited, by the appellant do not bear out the technical proposition advocated by him. In Gross v. Howard, 52 Maine, 192, the petition did not aver sufficient facts to give jurisdiction over the subject-matter involved in the petition, and the decree found no facts other than those averred, and sti.ll the court discussed and considered facts extraneous of both the petition and decree in arriving at their conclusion. In Fairfield v. Gullifer, 49 Maine, 360, a demurrer was filed in the appellate court to a petition for guardianship, and the petitioner saw fit to join the demurrer, instead of asking for an amendment, as a direct mode-of ascertaining whether the facts alleged were sufficient; he undoubtedly having no other facts to stand upon.
Exceptions overruled.
