Issues of fact. The probate court has jurisdiction to try and determine issues of fact arising in proceedings before it. And the issues of fact joined in the probate court, which are sent to the district court for trial, are of that class upon which the probate judge is unwilling to pass his judgment, or where from great conflict of evidence a reasonable doubt must exist in his mind as to which side has the right. Keller v. Franklin, 5 Cal. 432. ruled). (Over But when these facts do exist, every subsequent movement of the court is the exercise of jurisdiction over the subject matter, and over all persons who have been brought properly before it. Ibid. In regard to local jurisdiction, see the following chapter. TERMS OF COURT. Section 99 of the Code of Civil Procedure establishes the terms of the probate courts of the several counties in the State (a schedule of which will be found ante following the table of contents), and section 100 provides that the terms of the probate court must be held at the county seats. The act of March 1st, 1872, section two, provides that: "Each of the regular terms of each probate court shall, either with or without intermediate adjournment continue to the commencement of the next term." Sections 139 and 140 of the Code of Civil Procedure provides that: "If no judge attend on the day appointed for holding the court, or on the day to which it may have been adjourned, before noon, the sheriff or clerk must adjourn the court until the next day at ten o'clock; and if no judge attend on that day before noon, the sheriff or clerk must adjourn the court until the following day; and so on, from day to day, for one week. "If no judge attend for one week, the sheriff or clerk must adjourn the court for the term, unless the judge by written order directs it to be adjourned to some day certain, fixed in such order, in which case they must so adjourn it." PROBATE JUDGE. Section 167 provides that: "The judges of the probate court may, at chambers, appoint appraisers, receive inventories and accounts to be filed in the probate court; suspend the powers of executors, administrators or guardians, in the cases allowed by law; grant special letters of administration or guardianship; approve claims and bonds, and direct the issuance, from the probate courts, of all writs and process necessary in the exercise of their power." Sections 161 and 162, Chapter I, Title II, Part I, provide that: "Any county or probate judge may hold terms, or portions of terms, of the county or probate court, and perform any or all of the duties of county or probate judge, in any other county of this State, as well as in that for which he was elected, in cases of sickness of the proper judge, or to hear, try, adjudicate and determine all causes and matters in which the county or probate judge of the proper county is interested, or has been employed as an attorney, or is disqualified by law from trying or adjudicating." "When, from any of the causes mentioned in the preceding section, a term, or portion of a term, of the county or probate court cannot be held in a county by a county or probate judge thereof, the judge disqualified may, by consent of the parties to the actions or proceedings which such judge is disqualified from adjudicating, designate the county or probate judge of some other county to hold such term or portion of a term; and if the parties fail thus to consent, à certificate of the fact of such disqualification, or in the case of sickness of the judge, then of the fact of such sickness, must be transmitted by the county clerk of such county to the governor, who must thereupon direct some county or probate judge of a reighboring county to hold such term or part of a term." THE SEAL. Section 152, Article VI, Chapter I, of the Code of Civil Procedure provides as follows: "The seal of the court need not be affixed to any proceeding therein, except 1. To a writ; 2. To the proof of a will, or the appointment of an executor, administrator or guardian; 3. To the authentication of a copy of a record or other proceeding of the court, or an officer thereof, for the purpose of evidence in another court." For further provisions regarding seal vide Article VI, Chapter X, Part I, Code of Civil Procedure. ISSUES OF FACT. Under Section 6, Article VI, of the Constitution as originally adopted, the district court had unlimited jurisdiction to try issues of fact joined in the probate courts. By the amendment adopted in 1862, the district courts were deprived of this power; and all issues of fact are now tried in the probate court, a jury being impaneled for the purpose whenever it is demanded by one or both of the parties. See decisions cited under sections 1313, 1314 and 1716 post, and on page 3 et seq. ante. IN PROBATE PROCEEDINGS. Section 1713, Part III, of the Code of Civil Procedure provides: "Except as otherwise provided in this Title (Title XI, Part III Code of Civil Procedure), the provisions of Part II of this code are applicable to, and constitute the rules of practice in the proceedings mentioned in this Title." Two important rules of construction of the codes are contained in the following sections of the Political Code: "Section 4478. With relation to the laws passed at the present session of the legislature (Session of 1871-2), the Political Code, Civil Code, Code of Civil Procedure; and Donal al End of Section 4479, Page 8. All provisions of law inconsistent with the provisions of this Act, are hereby repealed; but no rights acquired or proceedings taken under the provisions repealed, shall be impaired, or in any manner affected by this repeal; and whenever a limitation or period of time prescribed by such repealed provisions for acquiring a right or barring a remedy, or for any other purpose, has begun to run before this Act takes effect, and the same or any other limitation is prescribed by this Act, the time which shall have run when this Act takes effect shall be deemed part of the time prescribed by this Act. This Act takes effect on the first day of July, one thousand eight hundred and seventy four. PROBATE LAW AND PRACTICE. PART III, TITLE XI, OF THE CODE OF CIVIL PROCEDURE OF CHAPTER I. OF JURISDICTION. SECTION 1294. Jurisdiction of probate court over the estate, when exer cised. 1295. When jurisdiction decided by first application. SEC. 1294. (2) Wills must be proved, and letters tes- Jurisdiction tamentary or of administration granted of probate court over the estate, cised. 1. In the county of which the decedent was a resident when exerat the time of his death, in whatever place he may have died. 2. In the county in which the decedent may have died leaving estate therein, he not being a resident of the State. 3. In the county in which any part of the estate may be, the decedent having died out of the State and not resident thereof at the time of his death. 4. In the county in which any part of the estate may be, the decedent not being a resident of the State and not leaving estate in the county in which he died. 5. In all other cases, in the county where application for letters is first made. Statutes of 1851, p. 448, § 2; 1861, p. 628. Proceedings in probate court not civil actions.-Proceedings for the settlement of an estate and matters connected therewith, are not civil actions within the meaning of the practice act, so as to transfer them from one county to another. Estate of Scott, 15 Cal. 220. Residence. It is the object of the law, that administration should not be granted until the death of the party, and only one administration within the State; it therefore makes his residence at the time of his death the test by which to determine where the grant should be made. Accordingly, these two facts must be alleged in the petition; and they must be true in fact. If not true in fact, the proceedings are void: and the decision of the probate court upon these jurisdictional facts is not conclusive upon any one not actually before the court. Beckett v. Selover, 7 Cal. 215; Haynes v. Meeks, 10 Cal. 110. And unless the court has jurisdiction, the proceedings, however regular, cannot be sustained, collaterally, as in a case where administration is granted by a probate court of the wrong county. Ibid, and cases cited in the opinion. The probate court cannot refuse to hear testimony to show that the deceased was not, at the time of his death, a resident of the county where the estate was being administered. Beckett v. Selover, 7 Cal. 215. Where jurisdiction exists in one county and letters are there issued, the proceedings cannot be transferred into another county, on the ground that the widow and the witnesses resided in the other county, and that the interest of the persons representing the estate would be advanced. Estute of Chas. G. Scott, 15 Cal. 220. See Bush v. Lindsey, Cal. supreme court, July term 1872, cited under section 1353, post, as to jurisdiction over an executor of an executor. The residence of the party at the time of his death, and not the situation of the estate, is the test of probate jurisdiction. Estate of Harlan, 24 Cal. 182. The probate court of the county of which the decedent was a resident at the time of his death, alone has jurisdiction to issue letters of administration upon his estate. Ibid. Letters of administration upon an estate granted by the probate court of one county cannot be collaterally attacked by showing that the last place of residence of the deceased was not in that county, and therefore, that the court had no jurisdiction. Irwin v. Scribner, 18 Cal. 499. In the provisions of the statutes relating to testamentary matters, the terms "resident" and "inhabitant" have the same purport, and are to be construed in reference to the domicile of the decedent. A domicile once acquired continues till another has been gained animo et facto. Isham v. Gibbons, 1 Bradford, 70. A. died in Henry county and his will was proved and admitted to record there. An application was made to revoke the letters on account of the birth of a posthumous child unprovided for. In the meantime, that part of Henry county, including testator's residence at the time of his death had been cut off and included in Spaulding county, and the administrator de bonis non had removed to Texas. Held, that Henry county had jurisdiction of the proceeding; that the right to transfer to Spaulding was a personal privilege; and that in this and all similar cases, everything done previous to the application in the original county was rightly done, and was valid. McDONALD, J., dissenting. Knight et al. v. Knight Administrator, 27 Georgia, 633. An executor or administrator, by virtue of his appointment in one State or county, derives no authority over the goods of the deceased in another county or State, unless he obtain new powers in the jurisdiction where such goods are situated. Parsons v. Lyman, 4 Bradford, 268. A writ of ne exeat was issued against an executor about to remove from the State. Held, on appeal, that the will of the testator being proven in Georgia, and letters being issued there, where the testator died, and the executor and the legatees at the time and the property being all situated there, the courts of Georgia will not surrender their jurisdiction over the person of the trustee, |