The Kansas herald of freedom., 1858-11-20
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I Have ths Probate oeurn Civil Jurisdiction.
We understand that Judge WILLIAMS
has decided that the Probate Court can
not be invested with civil jurisdiction,
further than devolves upon it in the sps-
cial discharge Of probate business. He
states that the very name of the Court, in
the Organic Act, implies the duties it has
to perform and that the Legislature e1-
cesded its authority whom it invested it
with appellate jurisdiction, and in giving
it original jurisdiction in certain cases con-
current with the District Court.
Judge LEcoMPTE decided, about ten
months ago, that the Probate Court had
no criminal Jurisdiction; so, between these
decisions, that Court seems to be stripped
of nearly its entire authority, if these de-
cisions are sustained.
If Judge Williams is correct in going
to the name Of the Court to learn its du-
ties and jurisdiction, then it will be dis
covered that its jurisdiction is still more
limited than probably even Judge W.
would claim for it. The term comes to
us from the Latin probdtrs. probo, to prove.
In its legal acceptation. it signifies "the
right or jurisdiction Of proving sOills."
According to Webster, who is standard
authority even in Congress, probate
Court, or Court of Probate" signifies g
Court for the probate Of ,oills." 1t has
been usual to invest that Court even in
the States where its powers are very lim-
tied, with not only jurisdiction over the
probate of wills, but the granting Of let.
ters of administration on the estates Of in
testates, and a general direction over thu
property of decedants, as well as theil
miner children. In Kansas, if Judg.
WIS decision, and his reasons for it, pre-
vail, the Court should confne its duties Il
the proving of wills, and here their juris
diction ends.
| We apprshsnd, however, that Judge
W. has not given this subject that care
full consideration which its importance
merits, and as we are well satisfied it il
wholly incorrect, and in conflict with law
we shall give our reasons for this differ
ence Of opinion. Going back to the Or
ganic Act of Kansas, we find, in section
q, the following -
"That the JUDICIAL power of said Ter
ritory shall be vested in Supreme Court
District Courts, PROBATE COURTS, and il
Justices of the Peace. =
The juyisdietion of the several Courts, =
both appellate and original, AN
THAT OF PROBATE Courts, and of Jus
ices of the Peace, shall be as limited b
law; Provided, that Justices Of the Peac
shall not have jurisdiction of any matte
, in controversy when the title or bounda
ries of land may be in dispute, or wher
the debt or sum claimed shall exceed OF
hundred dollars and the said Suprem
and District Courts, respectively, shal
possess chancery as we'll as common la
? Jurisdiction"
D Section "a also says:
"The legislative power of the Territor
q shall extend to all rightful subjects Of les
islation, consistent with the Constitutio
a of the United States and the provision
!. Of the Organic Act"
: In the two sections quoted above, "
find all the law of Congress which has
bearing, either directly or indirectly, O
n the subject. The language of the Ac
n instead of limiting the jurisdiction of Pr
: bate Courts, wisely left it Initiative wit
the Legislature, and with that body onl,
Justices of the Peace were limited in il
Q risdiction, and specific powers were col
ferred upon the Supreme and Distri,
Q Courts; but not word was said whic
: shows an intention to restrict the duti'
q of the Probate Court. Instead of limi
t ing the authority of the Probate Court
II strict probate business, it vests in tn
: Court in 30 many words, judicial pow
If er." This signifies power to decide,
:. pass judgment, in contradistinction of me-
2, ministerial authority, such as is investe
g in marshals, sheriffs and constables WI
: execute the processes, DEGREES and judi
= msnts of judicial officers.
q Changing the position of the words en-
lployed in section q, which relates to Il
v Probate Court, and divesting it of extr
g neous subjects, foreign to the present i
o quiry, and we find it to read as follows
!. "The jurisdiction of the Probate ecu
which has judicial powers, both appells
:. and original, shall be as limited by law
" It seems to us that no terms can
:. palmer than the above, and yet such
= the language, word for word-slight
:; transposed, so IS to bring them in clos
:, proximity-which is employed in t
Organic Act We conceive it would ha
been difficult for Congress to have fou
= terms better calculated to convey the id
;. of civil jurisdiction than that employ
and expressed in the terms "judic
:. power" " both appellate and origina
Ne philologist will undertake to say tn
!, because the term probate Court' occ,
: after the terms "both appellate and oriI
nall and is connected by the coniuncti
- and, therefore it has not appellate a
:. original jurisdiction. The grammati'
construction of the sentence is the SAL
- as if it read " The jurisdiction, both q
- pellate and original, of the several Cour
including that of the Probate Courts, sh
be as limited by law" The words "a
\ Probate Courts" employed, seem to &C
- vey the idea that the drauehtsman of
=, Act contemplated that some person mig
question whether Probate Courts were
- tended to be included with those havi
:. appellate and original jurisdiction, her