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I wish to call attention to a fourth defect in our procedure. It is complicated to a degree. I have in my paper here the citation of a case of a well known New York family where they have been since February, 1899, trying to get the proper persons into court to probate a will. One of the best firms in New York city is engaged in it and one of the defendants is not served yet.

The four defects that I point out particularly are these: The practical exclusion of realty from any system of probate procedure. When you go back to our statute it makes the probate of the will done in a particular way prima facie evidence of the will as to realty, but it may be always contradicted.

In the second place, there is no vested right in a rule of evidence. That rule making that decree prima facie evidence may be repealed at any time the evidence is given. Not only may it be done, but it has been done. There is a period in the history of this State where wills could be probated in the Courts of Common Pleas, and if you will examine our statute carefully to-day you will find that the decrees of the Courts of Common Pleas admitting wills to probate are no longer prima facie evidence of the validity of the will. It is confined to wills probated in other


I have certain recommendations to make in this matter. They are very general. The limits of time of a paper here would not permit of discussing such a subject fully at all, but I can only outline what seems to me a very simple set of remedies which have this additional recommendation, they have been in actual practice for years in other States without any serious difficulty arising.

The first point is that we should render our probate court a court that proceeds in rem instead of in personam, so that the very first determination by the court, when it

undertakes to handle an estate is to determine who is interested in the estate, and with that finding the decree shall bind and protect everybody. That, I take it, is the nature of a proceeding in rem as against a proceeding in personam. That it proceeds upon the property. Under that system you would cite all the world at least once in the proceeding and perhaps more times. That is a matter of policy. But everybody in all the world should be cited to attend that probate proceeding, and when the decree is given it may be binding. It may be subject to being opened at the instance of a party who has had no notice, for a short time. It is subject to revision by appeal, but unless it is revised by appeal or opened within that short period, it is finally binding; binding upon the man whether he ever heard of it or not. You may say that is a hard and harsh remedy against a man who has been in South America or South Africa and who knew nothing of the fact of the death of the decedent; but I wish to point out right here that a man who severs himself from his relatives, who severs himself from the community, has no supreme right to be protected at the expense of everybody. The right of inheritance is not a natural right. It is a right conferred by statute, which can be limited by statute, and when he severs himself in this way he should not, in fact, demand that everybody should yield to himself when he has cut himself off in this way. He should be protected as far as we can protect him, I thoroughly believe, and I think there are two simple things that can be done that will give ample protection in every case of that kind.

In the next place, I urge that our probate procedure should apply not only to personal property, but to real property. That the whole title of the decedent to own his property should be brought right into the Probate

Court and rest there, and that the decree of distribution of the property shall, when it is done, be a better title than any warranty deed, or as good a title as any warranty deed the decedent could give. It is not property that is the res, it is the title of the decedent. The Probate Court does not assume to determine the title and should not assume to determine the title of the decedent as against a stranger, but simply assume to determine where the title of the decedent, whatever it was, should go.

In the third place, the court should be a court of general jurisdiction of probate matters. In a court of limited specific jurisdiction it is liable to come to an end at any point and absolutely prevent the administration of justice. That is a matter which, in a considerable degree, might relieve this congestion of work in the Supreme Court. That, too, is a matter of policy.

In the next place the whole procedure could readily be simplified. Take section 2704, which covers two pages or more of Bliss' Code, with regard to the exemplification of wills probated in foreign courts. Why should we be relegated to such hard and fast rules, rules which are drawn without the slightest regard for the law of the foreign State to which they relate? That is so true that to-day, if you wish to produce au exemplification of a will probated in England, you cannot produce it in evidence in our court, as an exemplification of an English will, because the English law does not allow exemplifications in the form required by our statute. Why should not an exemplification in the form required by the English law, authenticated to us by any seal that is recognized by our State Department, be a sufficient authentication instead of our statute requiring that England, France, Germany, Italy, Russia shall all conform their law to ours?

There are two things I wish to suggest with regard to the protection of the absentee which are, I believe, novel. The rest of what I have suggested are perfectly familiar. If any of the members of the Association is interested. they will find in the Probate Code of the State of Minnesota a complete system of procedure in the Probate Courts, which proceeds in rem, which has general jurisdiction, which deals with personal property, and deals with real property. The Code there is founded on the older practice derived from the State of Massachusetts, a procedure that attains in a number of the States of the Union. But it may be urged there is no adequate protection to the absentee. I wish to suggest two things to cover that, and I think they are ample.

The first is that the citation of the Probate Court should not only be published to all the world, but should, in the second place, be served personally on every person who is affirmatively made to appear to be in the line of descent or devise, or good grounds shown for not showing it. That will go some ways.

In the second place, before any person is entitled to take by descent or devise under any decree of distribution I would require that person to file in the Probate Court a paper which should become part of the judgment-roll setting out fully the whole line of descent, showing that every person that he knew of or had any information about who could by any possibility have been in the line of descent, has been affirmatively brought in. The consequence of such an affidavit would be this: that when any absentee returned, if fraud had been perpetrated through concealment of the absentee from the court, the absentee would have the evidence of the fraud right there that it was perpetrated by the man who got the property and he would be able to prove that that man wilfully suppressed his

connection with the estate, and he would be able to proceed against him for the fraud. At the same time, any bona fide purchaser under the decree would be absolutely protected. I do not know what further can be done to protect the absentee than that very simple little thing. He is then protected in case of fraud, and in cases where there is an absolute mistake. If the persons attempting to take by descent or devise are required to reveal all they know of the family and pedigree, the cases will be exceedingly rare. If they are required to designate every person who has been born in the line of descent and show what has become of them, whether alive or dead, or they do not, you will very quickly eliminate all cases of fraud. I think you can sum up what I have said practically in three things: the establishment of the proceeding in rem; the establishment of proceedings to cover the realty; the conferring of general jurisdiction on the court of the whole subject; the rest of it is simplification.

Thomas F. Wilkinson, of Albany:

Mr. President, I would like to ask Mr. Bacon a question. Under the plan of general jurisdiction in Surrogate's Court would you provide for a jury trial?

Mr. Bacon:

I believe the State Constitution provides in regard to real estate there should be a jury trial. I see no reason why that remedy could not be conferred just as easily in Surrogate's Court as anywhere else, but, if, as a matter of policy, it is deemed better that the Surrogate should frame the issues and send them to trial to a jury of the Supreme Court, that is a mere matter of administration, a mere matter of detail, and not a matter of the general system. I see no objection to having the jury in the Surrogate's

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