PROBATE COURTS.

SIDNEY HAYDEN.

Mr. President and Gentlemen of the Bar Association:

The framers of our Constitution saw fit to invest the judicial power of this state in a Supreme Court, District Courts, Probate Court, Justices of the Peace, and such other courts inferior to the Supreme Court as might be provided by law. And further provided that there shall be a Probate Court in each county, which shall be a court of record, and have such probate jurisdiction and care of the estates of deceased persons, minors, and persons of unsound mind, as may be prescribed by law, and shall also have jurisdiction in cases of habeas corpus. That this court shall consist of one Judge, who shall be his own clerk, and hold his office for two years, and hold court at such times, and receive for compensation such fees as may be prescribed by law. Like all other judicial positions in this state the Constitution does not prescribe any qualifications for the incumbent of the office except that of citizenship. The legislature in its infinite wisdom, in chapter 25 of the General Statutes, relating to counties and county officers, has enacted three sections in regard to the Probate Court. The first provides for the election of a Probate Judge, and his giving a bond for the faithful performance of his duties. The second that he shall keep a record of all business done by or before him, and provides for his compensation.

The third that a vacancy in the office may be filled by appointment by the Governor, and in this section for the first time we find that in case of a vacancy some "suitable" person must be appointed, and in Jackson County I know that that provision of the statute has been literally complied with, for in a case where there was a vacancy and the Governor filled the same by appointing a "suitable" person the appointee, realizing that he was simply filing a vacancy, during his incumbency signed all orders, and spread the same upon the records of his court, affixing thereto the title "Probate Judge de bonis non.”

The Supreme Court of this state as far back as the 12th Kansas, in the case of Young v. Ledrick, decided "That a Probate Judge may receive judicial powers other than those granted by the Constitution to the Probate Court." If this is true, and it is cited approvingly by a long line of decisions down to the 55th Kansas, why would it not be in the power of the legislature to grant to the Probate Judge additional powers and make a respectable court out of it? And in addition to the jurisdiction which he already possesses give to the Probate Judge such original civil jurisdiction up to a thousand dollars, and criminal jurisdiction in cases of misdemeanors, with such a fair salary attached thereto that a competent lawyer could afford to hold the office. As lawyers we all know that in the minds of a large number of people there seems to be a general understanding that as soon as a man is elected to a judicial office by some occult power he at once becomes endowed with all the requisite knowledge to fill the position, and that the moment a person becomes comfortably seated in the Probate Judge's chair, he is by reason of his being there, qualified to advise widows, minors, heirs, executors, surviving partners, administrators, trustees, legatees, devisees, and even persons contemplating matrimony, as to their rights, powers and duties. This is not an overdrawn statement, and as a

general rule the Probate Judge feels the same way about it, and no matter what his previous occupation may have been after he has glanced through the Statutes concerning executors and administrators, etc., he accepts the judgment of parties having business in his court in respect to his ability to decide all questions of law and fact as final and conclusive and proceeds Solomon-like to give advice and deal out justice that is very often fearfully and wonderfully made. Again, as a result of this in many counties of this state it has become the practice for the Probate Judge to act as the attorney for parties having business in his court, to draft petitions for appointment of executors and administrators, examine attesting witnesses in respect to proving wills, and in fact draw petitions for sale of lands, etc., prepare annual and other accountings for executors and administrators, and other papers which can only lawfully be prepared by the party, or his attorney, and which it is his official duty to afterward pass upon. This practice, of course, is in direct violation of section 357 of chapter 31 of the Statutes concerning Crimes and Punishments, which provides "That hereafter it shall be unlawful for Probate Judges or Justices of the Peace to write any petition or answer, or other pleadings in any proceedings, or perform any services as attorney and counsellor at law in any case or cases pending before them, or to be interested in any profits or emoluments arising out of any practice in their own courts, except costs." Perhaps no active practicing lawyer has any reason to have any mercenary objections to the violation of this Statute, for like the man who draws his own will a Probate Court, run after the manner I have described, is the lawyers' best friend. But for the due administration of justice, and to protect a class of people who in their non-age or inexperience have duties suddenly thrust upon them by reason of the death of some parent, or husband, this practice ought to be stopped, and such legislation ought to be enacted as would

absolutely prohibit any Probate Judge from preparing any paper, or advising any party having business in his court, upon any subject which may afterward come before him for his judicial determination. As illustrating the evil consequences which result from this kind of procedure let me call your attention to a case which occurred in my own practice. A man died testate. By his will he devised and bequeathed all of his property, both real and personal, to his wife during her natural life time or so long as she should remain his widow. After his death the widow appeared before the Probate Court and produced the will. The Probate Judge advised her that under the terms of the will she could hold the whole of the property during her natural life and was also entitled to onehalf of it absolutely. She thereupon elected to take under the will. About a year afterward, like some other widows, she changed her mind and concluded she would re-marry. Thereupon the children brought an action of partition. The widow appeared in court, filed an answer claiming that she elected to take under the provisions of the will because of the erroneous advice given her by the Probate Judge as to her rights under the law, and asked that her election be set aside and that she recover one-half of the real estate. Upon the trial she proved her contention to the satisfaction of the District Court, the Probate Judge appearing as her witness, and with judicial solemnity testifying in her behalf that he advised her she could hold all of the property during her natural life, no matter whether she re-married or not. This is no isolated case, and I have no doubt but what nearly every member of this association can recall some similar transaction.

Referring again to the accounts of executors, etc., for the protection of all parties interested there ought to be some provision of the Statute which can be successfully enforced whereby it is made the duty of the Probate Judge to require all executors, administrators, surviving partners and guardians

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to make annual settlements. We all know that the provisions of the existing Statutes in this respect are not complied with, and that these persons in many instances are allowed to let matters rest in their hands for years without rendering any account of their stewardship, and when finally called upon to render an account their vouchers are lost, or misplaced, their report is doctored up by the Probate Judge, or some attorney, and many transactions which were honestly made, and which if embodied in an annual report would have been satisfactory to all parties, by reason of lapse of time have a suspicious look, are incapable of a satisfactory explanation and often lead to almost endless litigation.

Like all other tribunals in the United States Probate Courts are creatures of the Statute, but their present functions are largely borrowed from and are moulded after the English Ecclesiastical Courts and the precedents of the common law ought to afford great aid to them in the discharge of their important functions. It is claimed that statistics show that all American and English estates, in fact the property of the civilized world, pass through the hands of a court of this character every twenty-five years, and in a number of the states the courts hold that the probating of wills, and granting of letters of administration is exclusively confined to such courts and their action cannot be reviewed by certiorari or writ of error. Of course in this state appeals are allowed from the decision of the Probate Court to the District Court in all cases where there shall be a final decision of any matter arising under the jurisdiction of the probate court, except in cases of habeas corpus and injunction.

But even in states where an appeal lies to courts of general jurisdiction Courts of Chancery constantly refuse to relieve parties from fraud or mistake against the judgment of the Probate Court in setting aside wills probated, even when the will probated was forged. The records of the Probate Court,