PROBATE PRACTICE.

CHAPTER I.

RULES FOR CONSTRUING STATUTES-DEFINITIONS. Section 45 of the Code furnishes rules for the construction of certain words and phrases occurring in the statutes; many of them are of importance in their application to our probate statutes. They are as follows:

1. The repeal of a statute does not revive a statute previovsly repealed, nor effect any right which has accrued, any duty imposed, any penalty incurred, or any proceeding commenced, under or by virtue of the statute repealed;

2. Words and phrases shall be construed according to the context and the approved usage of the language; but technical words and phrases, and such others as may have acquired a peculiar and appropriate meaning in law, shall be construed according to such meaning;

3. Number, gender.-Words importing the singular number may be extended to several persons or things, and words importing the plural number may be applied to one person or thing, and words importing the masculine gender only may be extended to the females;

4. Joint authority.-Words giving a joint authority to three or more public officers or other persons, shall be construed as giving such authority to a majority of them, unless it be otherwise expressed in the act giving the authority;

5. The words "highway" and "road" include public bridges and may be held equivalent to the words "county way," “county road,” “common road," and "state road;

6. The words "insane person" include idiots, lunatics, distracted persons, and persons of unsound mind;

7. The word "issue" as applied to descent of estates, includes all lawful lineal descendents;

8. The word "land" and the phrases "real estate" and "real property" include lands, tenements, hereditaments, and all rights thereto and interests therein, equitable as well as legal;

9. The words "personal property" include money, goods, chattels, evidences of debt, and things in action;

10. The word "property " includes personal and real property;

11. The word "month" means a calendar month, and the word "year," the abbreviation "A. D.," are equivalent to the expression "year of our Lord;"

12. The word "oath" includes affirmation in all cases where an affirmation may be substituted for an oath, and in like cases the word "swear" includes "affirm;"

13. The word "person" may be extended to bodies corporate;

14. Where the seal of a court or public office or officer may be required to be affixed to any paper the word "seal" shall include an impression upon the paper alone as well as upon wax or a wafer affixed thereto;

15. The word "state," when applied to the different parts of the United States, includes the District of Columbia and the territories, and the words "United States" may include the said. district and territories;

16. The word "town" may include cities as well as incorporated villages;

17. The word "will" includes codicils;

18. The word "written" and "in writing" may include printing, engraving, or any other mode of representing words and letters, excepting those cases where the written signature or mark of any person is required;

19. The term "sheriff" may extend to any person performing the duties of the sheriff, either generally or in special cases;

20. The word "deed" is applied to an instrument conveying lands, but does not imply a sealed instrument; and the words "bond" and "indenture" do not necessarily imply a seal, and the word "undertaking" means a promise or security in any form;

21. The term "executor" includes administrator where the subject matter applies to an administrator;

22. The Roman numerals and Arabic figures, are to be taken as a part of the English language;

23. In computing time, the first day shall be excluded and the last included, unless the last falls on Sunday, in which case

the time prescribed shall be extended so as to include the whole of the following Monday;

24. Degrees of consanguinity and affinity, shall be computed according to the civil law;

25. The word "clerk" means the clerk of the court in which the action or proceeding is brought or is pending, and the words clerk's office" mean his office.

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Subdivision 19, above, does not authorize any person other than the sheriff, to serve notices or sell property on execution, but other sections of the Code authorize private persons to serve notices and subpoenas. Such persons, however, are not entitled to charge fees for making such service. Conway v. The M. & G. M. R'y Co., 43 Iowa, 32. A seal is not essential to the validity of a conveyance in this State. Pearson v. Armstrong, 1 Iowa, 282; Sinnus v. Harvey, 19 Id., 273; Sevitzer v. Knapps, 10 Id., 72.

Under sub-division 3, language denoting the plural number, applies equally to the singular. The State v. Thomas, 53 Iowa, 220.

Where under a parol purchase of real property the purchaser erects improvements thereon, he thereby acquires an equitable interest in the land, which interest, under the statute, is a mortgable one. White v. Butt, 32 Iowa, 335.

Under sub-division 10 the word "property," both personal and real property, are included, it was therefore, held that in an action for divorce and alimony, all the property of the parties, both real and personal, and whether the interest be legal or equitable, may be reached by order of the court. Jolly v. Jolly, 1 Iowa, 8.

By sub-division 13 the word "person may include corporations. Deliver v. Plymouth County Agricultural Society, 57 Iowa, 484. According to sub-division 23, when the statute does not require a specified number of "clear days" notice, the method of computing time is to exclude the first and include the last day. Bonney v. Cocke, 61 Iowa, 304.

DEFINITIONS.

Administration is the management of the estate of an intestate, or of a testator who has no executor, 2 Blackstone Com., 494. The term is applied broadly to denote the management of an estate by an executor, and also the management of estates of minors, lunatics, etc.; in those cases also where trustees have been appointed by authority of law to take charge of such estates in place of the legal owners, 1 Bonv. L. Dic., 83. Administration, Cum testamento annexo, that which is granted where no executor is named in the will, or where the one named dies, or is incompetent or unwilling to act. Such an

administrator must follow the statute rules of distribution, except when otherwise directed by the will. Id.

Administration, de bonis non, that which is granted when the first administrator dies before having fully administered. The person so appointed has generally the same powers as a common administrator. Bacon's Abr. Executor.

Administration, de bonis non cum testamento annepo, that which is granted when an executor dies, leaving part of the estate unadministered, 1 Bouv. L. Dic., 84.

Administrator.-A person appointed to manage and distribute the estate of an intestate, or a testator who has no executor. Id., 85.

Administrator, de son tort., a person who, not being regnlarly appointed administrator, inter-meddles with the property of the deceased, and thereby becomes responsible to the regular administrator for the value of the property taken or received by him, and for all damages caused by his wrongful acts to the estate of the deceased. Code, § 2484.

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"Executor," under the Code, includes "Administrator." Ccde, Sec. 45, Sub. 21, p. 21.

Executor. The person appointed by a testator in his last will and testament to dispose of his estate according to the provisions of the will, or where no executor is named in the will, or the one named fails to act, the person appointed by the court to execute the will. Burr, Law Dic., 455. Code, § 2332.

CHAPTER II.

PROBATE JURISDICTION.

Jurisdiction.-Section 2312 of the Code of 1873 provided that the "circuit court of each county shall have original and exclusive jurisdiction of the probate of wills, and the appointment of such executors, administrators or trustees, as may be required to carry the same into effect; of the settlement of the estates of deceased persons, and of the persons and estates of minors, insane persons and others requiring guardianship, including applications for the sale of real property belonging to any such estates, except as prescribed in chapters one and three of title fifteen." The exceptions here referred to relate to the sub

jects of Marriage, and Divorce, and Annulling Marriages, and Alimony.

By chapter 134 of the laws of 1886, the circuit court is abolished and all probate jurisdiction is conferred upon the district court. Code, p. 43.

The provisions of that act relating to the jurisdiction of matters in probate are as follows:

แ "SEC. 7. Jurisdiction of district court exclusive.-The distrcit court when organized and constituted as contemplated in this chapter shall have original and exclusive jurisdiction of all actions, proceedings and remedies, both civil and criminal, except in cases where exclusive or concurrent jurisdiction is or may hereafter be conferred upon some other court or tribunal by the constitution and laws of the state, and shall have and exercise all the powers usually possessed and exercised by courts of record."

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SEC. 8. All the rights, duties, powers and jurisdiction now by the law belonging to, or vested in, or exercised by the circuit court shall upon and after the first day of January, 1887, be transferred to, conferred upon, and exercised by, the district court; and all causes, proceedings of every kind pending or undetermined in the circuit court at said date shall stand for trial or other disposition in the district court as if originally brought therein."

"SEC. 9. When jurisdiction attaches.-Upon the abolition of the circuit court, as in this act provided, the district court shall succeed to, and exercise full authority and jurisdiction over the records of the circuit court, and may enforce all judgments, decrees and orders thereof in the same manner and to the same extent, as it may exercise like jurisdiction and authority over its own records, and for the purpose of the issuance of process, and of any and all other acts necessary to the due and efficient enforcement of orders, judgments and decrees of the circuit court, the records thereof shall be deemed the records of the district court. Transcripts and process from the judgments, decrees and records of the circuit court shall be issued by the clerk of the district court, and under the seal of his office."

The effect of this legislation, clearly is, that wherever the statutes conferred powers and jurisdiction upon the circuit court