Ayres v. Clinefelter

Breese, J. By the act entitled “ An act to provide for the election of Probate Justices of tbe Peace,” approved March 4, 1837, (Laws of 1837, page 176,) it is provided in the first section, that from and after the first Monday of August next, so much of an act, entitled “ An act relating to Courts of Probate,” approved J an. 2, 1829, as relates to the establishment of courts of probate in the several counties, be repealed. Section 2, provides for an election to be held on the first Monday of August next, after the passage of the act, and on the first Monday of August, 1839, and every fourth year thereafter, for the purpose of electing one additional justice of the peace, for each county, to be styled, by way of eminence and distinction, the probate justice of the peace, of their respective counties. Section 3, gives them the same jurisdiction in civil cases as possessed by ordinary justices of the peace, allowing appeals and writs of certiorari from their proceedings. By section 4, jurisdiction is conferred upon them in all cases of debt and assumpsit, express or implied, when executors or administrators are parties, when the amount claimed on either side shall not exceed one thousand dollars. By section 5, it is provided that in addition to these judicial powers, “ they shall have, possess, and exercise, within their respective counties, the following ministerial powers, to wit: Power to administer all oaths or affirmations, concerning any matter or thing before them; to issue and grant letters of administration, letters testamentary, and letters of guardianship, and repeal the same; to take probate of wills, and record the same; to determine the person or persons entitled to letters of administration, or to letters testamentary, and in general, to do and perform all things concerning the granting of letters testamentary, or of administration or of guardianship, which the judge of probate may do by the existing laws; to receive and file and record inventories, appraisement bills and sale bills, as is required by existing laws; to require executors, administrators and guardians to exhibit and settle their accounts, and to settle for the estates and property in their hands, and for that purpose, may issue citations and attachments into every county in the State, to be executed by the sheriff, etc.; and, finally, to do and perform all other acts of a ministerial character, which judges of probate could then perform in their respective counties. The 6th section provides the mode by which their proceedings can be made matters of record, and the 7th vests them with all the judicial powers theretofore exercised by the judges of probate ; but in all cases of the exercise of such judicial powers, they were required to report their proceedings to the next term of the Circuit Court of their respective counties, for their approval or rejection, and if approved by the Circuit Court, they were then to be considered as matters of record in the Circuit Court. The court, and the profession generally, throughout the State, always regarded this law, on account of the mongrel character bestowed upon the probate justice, and the incongruities and anomalies of the act, as entitled to very little regard, and it was soon after repealed, being condemned by the common judgment of the country. It is evident from this act, which was in force at the time the letters testamentary were granted in this case, that granting such letters shall be a ministerial act, and nothing more. Though the justice had important questions to consider before he could decide upon such applications, in many cases requiring a high exercise of the judgment, his decision is, nevertheless, a ministerial act, and so to be considered; and though no reference to this law is made by the court, in the opinion delivered in 16 Ill. R. 329, it might have been cited as controlling authority. If then, granting the letters in this case was a mere ministerial act, it was, as such, open to the country, and all the facts and circumstances attending the granting thereof should have been admitted in evidence. If it was a judicial act, the parties are concluded by the decision of the probate ; if ministerial, then the evidence of Mr. Hoes and the others, except Paughander, who was interested, having executed a conveyance with full covenants, should have been admitted. The judgment of the court below is reversed, and the cause remanded, with instructions that it is competent to prove that Ayres and Waddingham refused to act as executors, by competent evidence other than record evidence, or by a citation having issued to them, or by their having renounced in writing, and that the testimony of Hoes, Lindley, Leland, Raymond and Quigley should not have been excluded. Judgment reversed,.