Evening star., 1898-02-19
Senate Committees Report tFo FonAmsnd-
atory Legislation.
NECESSITY OF ACTION POINTED OUT
Bill to Give Full Authority to Dis
IL " .-ar e. -
tr.ct SupremeiGourt.
tC
JUDGE HAGNER'S VIEWS

The Senate committee on the District of
Columbia has reported favoraby a bill con-
fCrring ON the Supreme Court of the Dis
trict jurisdiction to take proof of the ex-
ecution of wills affecting real estate. This
bill was Introduced at the last session of
Congress by Senator Faulkner. and in it's
report, recommending the passage of the
bill, the committee has adopted a letter
from Judge Hagner, calling attention to-
the great importance Of legislative action
which will give to the Supreme Court CT
the District jurisdiction that for many
years it was assumed was possessed by the
Orphans Court.
In speaking of the matter today with
Star reporter the register Of wills. Mr.. ].
Nota McGin, remarked that the decision of
the case of Campbell against Porter. set
tied finally the fact that the Orphans
Court is without jurisdic ton to admit to
probate and record a VIII devising real
estate alone, and where personal estate Is
also bequeathed the probate Is only opera
tive as to the latter. The resalt is, as
demonstrated by recent decision Of the
Court Of Appeals, that a Will. even after
being sustained by a jury on the trial of
issues attacking its validity and then ad-
mitted to probate and record in the Or
phans' Court, may be again contested In
any action involving real property on the
same points previously decided py the Jury
in favor of the will
Since the decision in the case OF Camp
bell against Porter some members OF the
bar have sought to establlsh Will deVlsinS
real estate by instituting special proceed
ings in equity. This is not only expensive,
but imposes a hardship on all concerned
The present measure Will confer on the
Supreme Court of the District the same au-
thority and Jurisdiction over will devislng
real property that it now has, under the
act of Maryland of 119s, over wills and tes-
taments of personal estate.
The bill also includes authority for the
court to take proof of the execution OF
win affecting real estate heretofore filed
and admitted to probate only as to personal
property.
While the present m asure would be more
satisfactory to many If it included certain
mutations, says Mr.. McGill. yet it provides
for such decided step In the right direc-
ton that additional legislation may be left
to the future.
Letter of Justice HaEner.
In reporting the matter favorably Sena-
ter Faulkner called attention to the fact
that full discussion of the bill is found in
the letter of Judge Hagner. as follows:
This bill is of great Importance. Its
purpose is to give to the Supreme Court of
the District of Columbia a,jursdiction that
for many years it was assumed was pos
sessed by the Orphans Court,
lit has recently been settled, in Campbell
against Porter that this court. when hold
ing a special term for the transaction of
orphans court matters, is without juris-
will devising real estate alone. and where
personal estate Is also beQueathed the pro-
bate is only operative as to personal prop
erty. The result Is that In every contro-
volving thu disposition of real estate de-
vised by will, the testamentary instrument
must be established in such court by the
testimony of the attesting witnesses, not
- fhcto tyx ho ,hov cf Irov y,
of tne same court, may have already taken
the testimony Of all the subscribing wit
nesses. and admitted the paper to probate
and record as will of personally.
Our law in this particular Is today SUBJ
stantially the same as It existed in Eng
land over one hundred and fifty years ago.
In 1Il2 Lord Chanca allor Hardwicke took
occasion to denounce this divided and in
dependent Jurisdiction as a very great alb
surdtty and expressed the wish that gentle
men Of ability would take this inconven-
ience and absurdity into thafr consideration
and find out proper remedy by the assist
ance OF legislation.
Lord Chancellor Baron Yelverton, refer
ring to this situation, said in 1875: I be-
ieve no two cases can be supposed to be
more intimately connected with each other
both in unity OF time and of assurance
than Will of real and personal estate
written upon one and the same pieces Of
paper or parchment and subscribed by one
and the same signature. And vet 1t is clear
law that. though the probate Of such a will
Is conclusive evidence of the sanity of the
testator to make such a will, yet it is by
no means conclusive evidence of his capaci-
ty to dispose of his real estate. And why
Evidently because the capacity of a party
to do the two acts Is triable by different
jurisdictions.
From all of which am warranted to
lay 1t down as general position that the
capacity of party to do one act is not
conclusive Of his capacity to do another, if
his capacity as to that other be triable by
different Jurisdiction, whether the two acts
make one and the same assurance or are
done at one and the same time or not
THE result of the unsatisfactory condi-
ton OF the law on this subject is that not
withstanding the fact that a will presented
for probate as to personally, and sustained
by a jury on the trial of issues attacking
its validity, has afterward been admitted
to probate by the orphans court may yet
be contested de novo In an action involving
real property on the same points previously
decided by jury rendering verdict in
favor of the will.
1T is essential that some remedy should
be provided at once since the act of July
8, 1888 (Which 1t was thought by some gave
greater efficacy to recorded willis. has been
declared by the Supreme Court of the
United States in the case above referred to
to be ineffective to enlarge the Jurisdiction
of this court when holding special term for
the transaction Of probate matters in the
particular referred to.
against Potter has caused no little annoy
ance to property holders, and in many in
stances special proceedings have already
been instituted in equity to establish wills
devising real property. This proceeding is
expensive and imposes an unnecessary
hardship on the parties in interest
Provisions of the Bill.
The bill provides that the Supreme Court
of the District of Columbia, when holding
a term for Orphans Court business, shall
have full authority and jurisdiction to take
proof Of the execution of all last wills and
testaments affecting real estate and to ad-
NIT such Instruments to probate and rec
ord, as fully as said court is how empow-
cred to take proof of the execution of last
Wills and testaments Of personal estate,
and to admit the same to- probate and rec
ord; and that the record Of any such last
Will and testament of real estate, after tn.
same has been admitted to probate and
record, as aforesaid, or a copy of any such
last will and testament of real estate, duly
attested by the register Of wills. under the
seal of said court shall be pripla facie evil
dence OF the contents, due execution and
probate of such last will and testament of
real estate: Provided, That this act shall
not apply in any cause now pending in the
Supreme Court of the District of Columbia.
The second SECTION provides That the