St. Paul daily globe., 1891-06-09
KNOCKS OUT The CODE
Judge Otis Renders an I'M
portant Decision in the
District Court.
The Probate Code OF 1889 De-
elaped to Be UnconSti-
tutional,
So Far as Relating to Title
Of Real Property by
Descent.
Appeal Suggested to the Su
preme Court for a Final
Test.


law has been made, which affects the
disbursement of zeal estate and one
which will attract general interest
throughout the state. This construction
was given by an order filed yesterday in
the cause of Stina johnson against
Lawrence L. Harrison. The case was
heard and determined by Judge Otis
upon an appeal from the probate court
The controversy grew out of the alleged
constltutionality of the probate code,
enacted in 1889, which provides for the
descent of real estate chapter 46-
which changed the law so that the sur
viving husband or wife should take an
estate in fee simple instead of life
estate in the homestead. In this case
the probate court set off the homestead
of the late Mary B. Harrison to
her surviving husband, Lawrence
/. Harrison, in fee simple, Stina john
son, the mother of Mrs. Harrison, de-
ceased. appealed from the decision. 1t
is claimed that the act of 1889, which
was the authority upon which the pro-
bate Judge allowed Harrison the home
stead, in fee, is unconstitutional, be-
cause the title of the act of 1889 eStab-
fishing probate code does not embrace
the subject: Title to real property by
descent" The act is therefore repug-
nant to article f. section 27, of the con-
stitution. which provides that NO law
shall embrace more than one subject,
and which shall be expressed in its
title" In his opinion Judge Otis says:
81 cannot avoid the conclusion that the
point raised by the appellant is we'll
taken," and proceeds to review one or
two grounds upon which he bases his
opinion in the following manner:
while the subject of an act may be very
general and comprehensive, yet it should be
sufficiently definite and certain SO as at least
to suggest the matters which it attempts TO
legislate upon. AS tersely stated in the case
of The State VS.. Kinsella 10 Mimi, 395, the
insertion in Il law of matters which may not
be verbally indicated by the title, if suggested
by it us connected with or proper to the more
full accomplishment of the object so indi-
Gated. is held 10 be in accordance with its
spirit: but a more liberal construction cannot
be given without letting in the evils which
the provision was intended TO exclude"
UNCONSTITUTIONAL.
The dictionary definition of probate
code" here follows, and, proceeding,
Judge Otis says:
1.-The word probate is q specific and not q
genuine term, and is not applicable to those
general rules and principles defining and
governing rights of things Under the con-
stitution the probate court has jurisdiction
over the estates of deceased persons and per-
sons under guardianship, and all laws spe-
tally relating to and regulating the jririsdic-
ton, practice and procedure of the probate
court properly form part and parcel of pro-
bate CODE Descent of property is a legisla-
tive regulatiop and rights of property are Gre
ated, acquired and exist wholly independent
of any action on the part of the probate
court II is furthermore matter of much
doubt whether any attempt by the legislature
TO enact, under one title, u code of probate
laws, or other general system of law, is not in
like manner obnoxious to the constitutional
provision referred to. Probate laws relate to
diverse subjects, to the administration of
estates and TO pers ons under guardianship.
and term which embraces them both, and
so used in a title gives us a law embracing
more than one subject In those states
where such legislation has been sustained,
this constitutional provision has been con-
strued as directory and not manda-
properly held this provision mandatory,
without any express exception. The fact
that il has been decreed necessary to incor
pcrate such exceptions in constitutions con-
tanning such provisions, and the further fact
that the revisioneof 1856 was adopted and ap-
proved chapter by chapter, under an appro-
pirate title specifying the subject, indicates
the doubt which the constitutional lawyers
who have considered the matter entertained
as to the validity of such legislation, l am
aware that nisi prius court should be slow
to declare a law unconstitutional, but, if
in its judgment it clearly is SO, it
should not hesitate to declare accord
ingly, and thereby the sooner secure
review and final determination
of the matter i'll the court of last resort Be-
Sides as 10 estates which have been settled
in accordance with this statute so declared
invalid, and such settlement acquiesced in,
the rights of parties and settlements SO made
are not disturbed or in any manner affected.
See Greenwood VS.. Murray, % Mimi, 359. So
that there need be no apprehension that
titles will be unsettled or hardships result In
thus setting aside this provision of the pro-
bate code. For the same reason that this
provision of the code is invalid the portion
thereof repeating chapter 46 of the General
Statutes is invalid, so that the law
of descent of real property remains in force
the seme as though the code had not been
ADOPTED. The matters passed upon are of
very grave importance to the general public.
1t is exceedingly desirable that there should
be a review in the supreme court at the earli
est moment possible; and suggest when an
immediate appeal cannot be taken and the
attention of that court to the matter. and,
perhaps, some arrangement can be made fol
O hearing at the present term.