63 A. 38 | N.H. | 1906
Judges of probate have exclusive, original jurisdiction of the probate of wills and the settlement and distribution of the estates of deceased persons. Const., art. 79; P.S., c. 182, s. 2. Although their courts have no jury and the proceedings are *498
not according to the course of the common law, "they are to be regarded as courts of general jurisdiction on the subjects to which they relate, and are entitled to all the presumptions in favor of their proceedings which are allowed in the case of other tribunals of general jurisdiction, more especially as they are now made by statute courts of record." Stearns v. Wright,
Albert K. Tilton's will was presented to the judge of probate for Belknap county, accompanied by a petition signed by the executor nominated therein, praying for its probate and alleging, in substance, that Tilton was last an inhabitant of that county and had estate in the county at the time of his death. These allegations showed that the judge had jurisdiction of the probate of the will, both by reason of Tilton's residence and his having estate in the county at the time of his death. The judge could not decline or neglect to act upon the petition without violating the duty imposed upon him by law and disregarding his official oath. In acting upon the petition, it is obvious that he had authority to determine, and must determine, the jurisdictional questions of fact above mentioned. They laid at the very threshold of the procedure. As his court was one of general jurisdiction in respect to the probate of wills, and as he assumed jurisdiction of the probate of this particular will and proceeded to approve and allow it in common form, it must be presumed that he found that Tilton was last an inhabitant of the county, or that he had estate in the county at the time of his decease, or that both these facts existed. As the will was proved in common form, it must also be presumed that there was no contest before the court as to its probate. P. S., c. 185, s. 6; Huntress v. Effingham,
According to the facts appearing in the record, including those which the plaintiffs offer to prove, Tilton's personal property — nearly nine tenths of his entire estate — was in Belknap county at the time of his decease, having been previously taken there by himself and his guardian for preservation and protection. The plaintiffs do not question this fact, nor allege that there was any *499 wrong done or attempted in the removal of the property to that county; on the other hand, they offer to prove that it was done to protect the property from loss, in view of Tilton's mental condition, — certainly a prudent thing to be done under the circumstances. The situs of the property there, in and of itself, gave the judge of probate of the county jurisdiction of the probate of the will, even if Tilton's domicile was in Denver. To that extent the jurisdiction of the probate court affirmatively appears and does not depend upon presumption.
Neither the statute nor the common law required that the will should be probated first in the state of his domicile; it might be probated in this state first and in Colorado later, even if his domicile was in the latter state. Tilton v. O'Connor,
Probate of wills in common form was customary at common law, and has been practiced in this state ever since the beginning of organized government here. Smith (N.H.) 515, 516; 1 N.H. Prov. Laws (Batch. ed.) 105, 206, 815. The early statutes of the province and state contain no special provisions relating to the form of probate, but leave that matter to be controlled by the common law. Upon the revision of the statutes in 1842, it was provided that a will might be proved in common form upon the testimony of one of the subscribing witnesses if its probate was not contested, and that it might be done without previous citation and notice to the parties interested. R. S., c. 157, s. 6; Ib., c. 155, s. 1. These provisions do not materially change the common law on the subject, and, in substance, they are still a part of the statute law of the state. P. S., c. 187, s. 6; Ib., c. 185, s. 2.
The plaintiffs say they are not bound by the judge's decree allowing the will, because no notice of the proceeding was given to them and they were ignorant of its pendency. This proposition assumes that they were entitled to notice the same as if the proceeding had been according to the course of the common law — an assumption that is erroneous. The rights which they assert are not contractual rights, but are wholly dependent for existence *500
upon the statutes providing for the descent and distribution of the estates of deceased persons. By these statutes, the rights are not absolute, but are subject to the condition precedent, that the estate of the deceased person is not devised and bequeathed. The statutes read: "The real estate of every person deceased, not devised, . . . shall descend," etc.; "the personal estate of a person deceased, not bequeathed, . . . shall be distributed," etc. P. S., c. 196, ss. 1, 6. The real and personal estate of a deceased person may be devised and bequeathed by a will duly executed, and proved without citation and notice to the heirs of the testator. By virtue of the condition attached to an heir's right, it may be defeated without formal notice to him of the existence of a will or of the pendency of the proceeding for its probate. The omission of notice does not appear to be unreasonable when it is considered that ordinarily the heirs learn of the decease of the person very soon after it occurs, and that their interests naturally and strongly urge them to promptly ascertain the nature, extent, situation, and disposition of his estate. They are put upon inquiry by the death of the party, and are reasonably chargeable with notice of all facts concerning their rights that they would learn upon diligent inquiry. Starkey v. Kingsley,
Two methods of making a direct attack upon the decree of a judge of probate are provided by statute: (1) An appeal from the decree, to be taken not later than sixty days after the decree is made (P. S., c. 200, s. 1), and (2) a petition to have the probate re-examined in solemn form, to be filed within one year after the date of the decree. P. S., c. 187, s. 7. If in a proceeding of the latter kind the probate is not confirmed, "the will and probate shall be void." Ib., s. 8. Neither of these methods was pursued by the plaintiffs; but the nature and effect of the latter *501
method, especially, have an important bearing upon the questions before the court. At common law, an interested party might obtain probate in solemn form, of a will already probated in common form, after the lapse of a long time subsequent to the former probate. Sir William Wynne said in Hoffman v. Norris, 2 Ph. Ecc. 230: "I do not know that there is any specific time which limits a party." It has been said that it could not be done after the lapse of thirty years. Noyes v. Barber,
Recognizing this fact, the plaintiffs have petitioned the probate court to set aside the decree. There is no doubt of the court's power to do this, provided sufficient cause is shown. Morgan v. Dodge,
If there were no other reason, the plaintiffs' laches in the matter would debar them from the remedy they seek. 1 Will. Ex. 395; Child's Appeal,
The plaintiffs do not allege that the decree in question was tainted with fraud, or that any fraudulent steps were taken by anybody to deprive them of information concerning Tilton's death or the settlement of his estate, or to mislead them in any way; and no facts are reported having a tendency to show fraud in either respect. They have not shown that there was any mistake on the part of the probate court in assuming jurisdiction of the probate of the will. On the other hand, it affirmatively appears that there was no such mistake. They offer no sufficient excuse for their alleged ignorance, or for their delay in beginning an attack upon the decree. In short, they have utterly failed to show *504 that the decree was due to fraud, accident, or mistake, or that they were delayed or imposed upon in any way with respect to the matter, or that they have exercised reasonable diligence. It does not appear that it is against conscience to allow the decree to stand and conclude the rights of the plaintiffs as heirs-at-law of Tilton. On the other hand, it appears that it would be against conscience to allow the decree to be attacked after this lapse of more than twelve years and a half, and after the will has been nearly completely executed. The decree of the probate court dismissing the plaintiffs' petition should be affirmed.
Case discharged.
All concurred.