a civil case, as well as the title to property which will be tainted with the irregularities allowed to creep into the record, which, in many instances, may amount to serious questions of jurisdiction, for it must be borne in mind that, unlike a civil case, where the question of jurisdiction is settled once for all, in the settlement of an estate we are confronted by it at every turn, in the appointment, in the settlement of accounts, in the sale of property, in distribution, and at other stages of the proceedings. It does not follow that, because the court has jurisdiction over the estate generally, all the interested parties are before the court as to every step to be taken in the course of its settlement. Each of the matters just mentioned is, in a sense, a separate proceeding within itself, and in that proceeding all the world are parties, or, at least, all are entitled to notice so they may become parties and be heard if they desire; and unless notice is given in strict compliance with law property interests may be adjudicated without due process of law. It has been said by our supreme court that the administration of an estate is substantially a proceeding in rem (5 Wash. 318); indeed it often involves several separate steps in the nature of proceedings in rem, each of which, so far as the jurisdiction of the parties is concerned, is independent of the other. In any event it can be said of each of the principal steps to be taken in such a proceeding, as an eminent writer (Waples) has said about proceedings in rem, "From the four quarters of the earth claimants may come and voluntarily put themselves under the jurisdiction of the court. Hence the necessity of giving such notice as will require all to assert their rights at each principal step taken before it can be said that the decrees of the court can be res judicata as to all. (Waples, Proceedings in rem, 571.)

So much for the importance of matters of probate when their nature alone is considered. What then of the vast interests involved? I remember reading in a review some years since (just where I do not remember) that all of the real property of the country passes through the course of administration in the courts, having probate jurisdiction, on an average of once in thirty years. Some statistics tending to prove a case much stronger than this were given by Judge Brewster, of Philadelphia, at the opening and dedication of the orphan's court rooms in that city in November last. In a sum

mary of the work of that court, covering 1876 to 1894, inclusive, he showed that the total value of estates settled in that court for those eighteen years was a million dollars more than the entire value of both the real and personal property of the city and county of Philadelphia. We have no reason for believing that this is materially different from what the average would be of other places, so it would seem that the thirty year estimate was probably a longer time than the real average. It is then manifest that the value of interests involved in ordinary litigation is not to be compared with that affected by decrees in probate. I mention these things only to call attention to the importance of this much neglected field of the law. It is one which is certainly worthy of attention, and if cultivated will yield some of the richest fruits of jurisprudence. The purpose of this paper is to briefly review the principal features of our probate code and note some of its defects and inconsistencies, with some suggestions for curing them, but at the same time to defend its general framework.

The history of probate practice within the territorial limits of Washington has not been marked by any radical change in its general scope at any time since the passage of the several acts relating thereto by the first session of the territorial legislature in 1854. These several acts, if taken together and properly classified, would have formed quite a respectable and complete system, and their main features can be easily recognized in the code as it exists today. Some slight amendments were made in 1860 and 1861, and in 1863 there was an act passed "defining the jurisdiction and practice in probate courts of Washington Territory," which was but little more than a codification of the previous acts. This act was slightly amended from time to time when, in 1873, with the amendments theretofore made, it was again re-enacted as a whole, and this act went into the Code of 1881 almost verbatim, since which time it has had some additions but very little change in the original. I am unable to say from what state it was originally taken, but substantially the same general provisions are to be found in most of the older western states.

The first matter provided for in our probate code is the jurisdiction of superior courts in such proceedings. I do not think, as the law now stands, that the fact of that jurisdiction being lodged in

the court of general jurisdiction makes it in any sense of a different nature from that of a court of exclusive and limited probate jurisdiction, such as existed in the Territory of Washington and as now exists in many of the states of the union; it is still a limited jurisdiction, or, we might say, a separate and special jurisdiction as distinguished from law and equity, and it covers a field as distinct, within itself, as either of these. The power of the court in probate is primarily to take proof of wills and to grant letters testamentary of administration and guardianship, to settle estates of deceased persons and accounts of executors, administrators and guardians; and such other powers as are incidentally necessary thereto. And notwithstanding it is in a court of general jurisdiction these powers are exercised in this state, yet I apprehend that no one will contend that in a purely probate proceeding the court has any general common law or equity power save such as is necessarily and strictly incident to the exercise of that which is expressly named in the statute. It is not a proceeding in which disputed property rights between the estate and third parties can be settled; the court can deal only with the property in the possession of its officers, to wit, its executors, administrators or guardians, or rather with the interest of the deceased or ward in such property, and can determine no controversy arising between such officer and third parties. The law leaves such controversies to the civil side of the court, where the estate, through such officer, has the same rights, but no more nor less, as any other party, where it has to sue or to be sued in the same manner.

Probate proceedings are as unsuited to such controversies as those of equity would be to the trial of an action at law where the right of a jury trial exists, and I think all will agree that this right should be held as sacred in controversies where an estate is a party as where both parties are living persons. The only property rights the court can settle in such a proceeding are those of heirs, legatees, and, to a limited extent as our law now stands, of creditors. As to creditors, the law at present leaves us in some confusion, which will be noticed in its proper order.

The principal process issued out of probate is called "citation," and under our code whenever personal notice is required to be given to any party to a proceeding in matters of probate, and no

other mode of giving notice is prescribed, it is by citation, which is issued and signed by the clerk, under the seal of the court, directed to the sheriff, requiring him to cite the person to appear before the court at a time and place named.

The objection to be urged against this form of citation is that it is directed to the sheriff and commands him to cite the person to be notified; this makes it necessary that the sheriff serve it, and besides it is not as simple and direct as if it were in the first instance directed to the person to be notified, as a summons is. I would have the citation issued by the clerk, under the seal of court, and directed to the person or persons cited, giving them notice of the proceeding, or requiring them to appear on a day certain, and then have it served in the same manner, with same proof of service, as required for summons in a civil action, save where service by publication is necessary, as it often would be for instance, where it would be addressed to all persons interested, like notice to credit. ors, settlement of accounts, etc.

Where such general form of citation is impracticable, then let notice be by order, which, of course, can be made to fit any circumstance, leaving it to the court's discretion to determine which mode of notice (order or citation) is best suited to the proceeding, except in cases which are specifically provided for.

The first step in the administration of an estate, if there be a will left by the deceased, is to have it duly probated; that is, to have its validity established by legal proof.

There are two methods known to the law of procedure in all common law countries, by which a will may be admitted to probate, at least one of which, and in some states both of which, have been adopted by statute. They are called "Probate in Common Form" and "Probate in Solemn Form." Common form is a proceeding without notice to any one who may be interested for or against the will, in which the court hears the testimony of the attesting witnesses ex parte, and if satisfied of the execution of the will, and of the soundness of mind of the testator at the time of its execution, orders it admitted to probate; or, if not so satisfied, rejects it. In England and some of the American states, including Washington, wills are usually probated in common form, and this is upon the presumption that the writing presented is valid in all

respects. In England it is optional with the proponent of the will to prove it in either common or solemn form in the first instance. Such is also the law of some of the American states, where, if proved in common form, it may, upon the petition of any one interested, be required to be proved in solemn form within a certain time, limited by the statute. (Woerner's American Law of Administration, 216.)

In view of the failure of our statute to provide a mode of giving notice to parties interested, it would seem that probate in common form is exclusive of any other method in the first instance, although this is not free from doubt. Thereafter, at any time within one year, any person may contest the validity of the will and, by citation, bring all interested parties before the court, and the court's decision upon such hearing becomes final, save as to persons under certain specified disabilities, who may contest within one year after the removal of their respective disabilities. Now, whether this contest, provided by our statute, is to be guided by the rules which would apply to proof in solemn form, is where the doubt exists.

Probate in solemn form is where all parties are brought before the court by citation or notice in the first instance, to be heard upon all questions touching the validity of the will, in which case judgment of the court is final as to all parties before it. This mode seems never to have been in use in the State or Territory of Washington, for we find § 16 of the act of 1854, passed during the first session of the territorial legislature, is still in force (see § 862, Hill, or $1357, Huntly), which reads: "When any will is exhibited to be proven, the court may immediately receive the proof and grant a certificate of probate." * * * The time for contest was then fixed at five years; in 1860 it was reduced to one year, and has so remained until the present time.

The advantages of common form of probate over solemn form must be so apparent to those who have had occasion to see its practical workings that to lay it aside would be no more thought of than to lay aside the code system of practice in civil cases and return to the forms of common law. And while it is really more ancient than proof in solemn form, coming to us from the practice of the ecclesiastical courts of England, it is still more in accord with the tendency of modern practice legislation towards simplicity.