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such a controversy as arose in the Stratton estate over the appointment of temporary administrators could not arise under the new law. While it recognizes the rights of the executors in the case of a contest of a will in the first instance to be appointed temporary administrators, it likewise recognizes the rights of the heirs to ap pear and show cause why such appointment might be prejudicial to their rights. The new law also specifically provides that executors seeking to establish a will against the objections of contestants should be entitled to attorney fees and expenses therefor out of the estate, even if they fail to maintain the will, provided in the opinion of the Court the litigation was conducted in good faith.
We have never had any provision for the enforcement of contracts of deceased persons for the conveyance of real estate which remained unexecuted at the time of death. Provision is made for the specific execution of such contracts. The proceeding is hedged about with proper directions as to notice, etc., so as to protect the rights of the heirs and all persons possibly interested.
Under the former statute, proceedings to sell real estate in the estates of deceased persons, lunatics and minors, could be comienced originally in the District Court in accordance with the terms of the statute. In the case of minors, proceedings to sell, lease or mortgage real estate, where the amount involved exceeded two thousand dollars, it was provided must be commenced exclusively in the District Court. This section was of recent origin and no doubt the result of some timidity as to the jurisdiction of the County Court where the amount exceeded two thousand dollars.
The jurisdiction of the County Court in such cases, however, regardless of amount, has been so completely settled by the Supreme Courts of Illinois and Colorado that the statute was totally unnecessary and involved much hardship in many counties where the District Court met at infrequent intervals. Again the County Judges are supposed to be better familiar with estates and have more time and opportunity for their attention than the District Judges who have no knowledge of what may often have been many details of which the court should have knowledge to intelligently
deal with so important a matter. All such proceedings of every kind and character must now be first commenced in the County Courts.
The effect of this provision does not materially change the proceedings in probate matters. It has been very seldom indeed that action has been commenced in the District Court to sell, mortgage or lease the property of deceased persons. The Constitution of the State in defining the jurisdiction and powers of County Courts in probate matters, conferred upon such Courts powers that in point of importance and dignity ranked with those of the District Courts. We sometimes hear the old criticism that such powers should be restricted because of the fact that there are no qualifications imposed by the statute which must be possessed by the judges of such courts as is imposed in the case of the judges of the District Courts. If this is a fault it is not a fault in respect to the jurisdiction and probate powers of County Courts, but rather the fault of the Legislature and people in failing to provide qualifications in keeping with the dignity of the County Courts. The fact that judges of the County Courts in counties, except counties of the first class, are not required to be lawyers, was no doubt occasioned by the fact that in the early days of the State many counties were sparsely settled and it was practically impossible to find lawyers who would accept this position; the work of the Court in such counties being necessarily small the compensation attached thereto was no inducement to even a country lawyer of small practice. Just as soon as conditions would justify in this respect, I think it would be wise for the Legislature to prescribe the same qualifications for County Judges now possessed by District Judges. The new probate law provides specifically that appeals shall lie from the County Court to the District Court where the trial is de noro, and this of itself would be a sufficient answer to the objection to the jurisdiction of the County Courts in such matters because of the qualifications of any of its judges. The Constitution, however, has not only specifically conferred all such powers upon the County Court, but the Supreme Court of the State has repeatedly declared that in all probate mat
ters concerning estates of decedents, minors and lunatics the County Court has all general, common law and chancery powers. Thompson vs. Crocker, 18 Colo., 328. Wyman vs. Felker, 18 Colo., 387.
Lusk vs. Kershow, 17 Colo., 487.
People vs. County Court, 3 Colo. App., 426.
In re Jurisdiction of County Courts, Senate Bill No.
31, 12 Colo., 340.
Clemes vs. Fox, 25 Colo., 45.
Mitchell vs. Hughes, 3 Colo. App., 47.
Rosenberg vs. Frank, 58 Cal., 418.
Again any objection for the reason referred to for vesting such broad powers in County Courts is largely imaginary. I believe that about half of the probate business of the State is transacted in the City and County of Denver, in the County Court; certainly three-fourths of such business is transacted by eight or ten of the County Judges of the large counties. There is not the slightest doubt, even under the present conditions that the judges of all of these County Courts will continue to be, as they have for years past been, members of the Bar, possessing qualifications equal to those of the average District Judge. We have yet to hear of a single case where any litigant did complain or could complain of the abuse of power or deprivation of rights for lack of qualifications of the judge of any County Court. I do not believe that there is an appeal from the County Courts, to either the District or Appellate Courts, in one out of twenty questions of law or fact determined by such Courts, so that the alleged danger here referred to is largely a theory and not a condition.
A very important change made is that not only shall those summoned to the probate raise all objections as to whether the will be that of the testator, but also, if it be a will, all other objections to the legality of the contents thereof which then exist and could then be raised and determined in any other action. As we all
know, there are two classes of objections to a will. First, those involved in the issue devisavit vel non, which relate to such questions of fact as undue influence and testamentary capacity, involving solely the execution and validity of the will. Second, conceding the document as a will, can the directions and intentions of the testator be executed? Are the trusts therein contained valid or void? This change, so far as I know, makes our statute in this respect unlike that of any statute now existing in the Union, although similar provisions at one time existed in the statutes of New York. I feel somewhat personally responsible for this innovation, and while I am aware of some objections that have been made to it, I believe it will be sustained by the courts and will meet with the general approval of the Bar. It is bound to do much towards the speedy final settlement of estates and avoid much expersive litigation. It is necessary under the new law to obtain permission to advertise for final settlement so that the Court may know in advance the date set for the hearing.
I have at length discussed this question in the case of Peter Magnes will, heretofore referred to, in which the old statute was given the effect that is clearly settled in the new law in accordance with the opinion there expressed, and I shall not attempt to discuss the matter further in this paper. There is nothing in this change which precludes parties from seeking construction of a will or any part thereof in the County or District Court after probate on any question not actually existing at the probate, and which for any reason could not be then determined.
In drafting the new law, we have kept in mind the three-fold jurisdiction of the County Court in dealing with probate maters. Much of the confusion in former statutes and decisions of courts, not only in this State, but in some other States, resulted from the failure to recognize this important question of jurisdiction. It should be remembered that the County Courts of this State have all the jurisdiction of Ecclesiastical, Chancery and Common Law Courts in dealing with the estates of deceased persons, minors and mental incompetents.
One purpose of this revision has been to bring about the prompt and speedy settlement of estates in as few actions and with as little litigation as possible in as brief a time as may be safely limited to reasonably protect the rights of all parties concerned.
Where it might require as many as three suits under the practice in some States, and in as many jurisdictions, to settle all controversies covering a will, under our law as recently adopted, all such questions are settled in the same jurisdiction and in the same proceeding by the most simple method that could well be devised and in which the rights of all the parties are amply and sufficiently protected and all questions of law and of fact which could possibly be presented at the time or in any other proceeding are heard at the application to probate. In case the parties do not desire to contest such questions at length in the County Court, they may all be heard and determined upon trial de noro in the District Court. It is only necessary to raise all such questions in the County Court at the probate; the active trial may be deferred to the District Court if either party so elects. The former statute provided for appeal from all interlocutory orders from the County to the District Court. The effect of this was to greatly hamper and interfere with the prompt settlement of estates. The new law permits appeals only from final judgments or decrees in all matters of probate to the District Court and from the District Court to the Court of Appeals or Supreme Court, or direct from the County Court to the Court of Appeals or Supreme Court, as in other cases, to be allowed and prosecuted in the same manner as in civil or law cases from the decision of such County or District Courts.
As in the case of every revision, some defects or omissions may become apparent in the course of time, but we believe none of a serious character. In any event, the law is in better shape for amendment now than before.
A saving clause permits all actions to continue to final settlement under the old law, and provides any necessary proceeding to settle any estate pending, after the new law becomes effective, may