nition,) is avowed or assumed in so many decisions that an inventory of them would be tedious.1

§ 571. The Record Must Show Notice. The question, whether notice may be presumed, has been frequently tortured into a very different one: Whether the probate judge must have jurisdiction over the persons of those interested in a sale to pay a decedent's debts? Notice to all persons interested or claiming to have an interest is addressed to persons living beyond the jurisdiction of the court; to persons in Europe, all the world; but jurisdiction over persons whom the probate judge's process can reach and bring forcibly into court, is confined to his own bailiwick.

The probate court, like any other, when it proceeds against a thing, must have jurisdiction over that thing, and need have none over its owner. But, in order that the condemnation of that thing may bind all persons, including the owner, general notice must be published; and from the four quarters of the earth, claimants may come and voluntarily put themselves under the jurisdiction of the court. The Supreme Court of Iowa were divided on the question of personal notice in probate proceedings. Half the judges thought the probate court should have jurisdiction of the persons of those interested in a decedent's property in order to a lawful sale of it to pay estate debts: half, thought the other way: so, the question, having been decided affirmatively in the court a quo, remained undisturbed. And the decision thus arrived at, has since been reaffirmed. 3

The true rule is, the court need have jurisdiction only of the thing; but it cannot divest liens without notice to the lien

1 Pope . Cutler, 34 Mich. 152; Gillett v. Needham, 37 Mich. 143; Sitzman . Pacquette, 13 Wis. 291; Corwin v. Merritt, 3 Barb. 341; Sheldon v. Wright, 5 N. Y. 518; Ridge ney v. Coles, 6 Bosw. 486; Sibley v. Waffle, 16 N. Y. 185; Bloom v. Burdick, 1 Hill, 140; Clark v. Holmes, 1 Doug. (Mich.) 394; Palmer v. Oakley, 2 Id. 472; Greenvault v. F. & M.

Bank, 2 Id. 472; French . Hoyt, 6 N. H. 370; Dakin v. Hudson, 6 Cow. 222; Doe v. Anderson, 5 Ind. 34; Babbit v. Doe, 4 Ind. 356; Arnold v. Nye, 23 Mich. 292; Ryder v. Flanders, 30 Mich. 341; Bloom v. Burdick, 1 Hill. 137.

2 Good v. Norley, 28 Iowa, 188. 8 Rankin v. Miller, 43 Iowa, 11.

holders; nor any interest, without notice to the interest holders. The notified may come, as affirmative parties, into court or not. They are not proceeded against as the thing is; they are not made "adverse parties," though they have the right to make themselves such; and surely they cannot have default entered against them without previous notice.

Much misapprehension has been exhibited, of the expression of Judge BALDWIN in the case of Grignon v. Astor: "the administrator represented the estate."1 Even judges have written opinions based upon the understanding that he was said to represent the heirs of that estate. The heirs had the right to oppose the sale: did he represent opponents, so as to preclude the necessity of notifying them, while he, at the same time, was the applicant for the order of sale? In representing the res, did he also represent all possible claimants of that res? Did he represent "all the world," so as to bring all the world within the county judge's bounds, for jurisdictional purposes?

This much space has been given to the decision, because it has had a large following, both for its good matter and its other matter; it has been cited very frequently, both by the National and the State courts. Its leading doctrine, that proceedings in rem to condemn the estate of a decedent to pay the debts of such estate, are analogous to proceedings in rem in admiralty, in which the decree of condemnation is conclusive against all the world, and from which the new title paramount arises, has been repeatedly accepted. But the acceptance has not been universal, since it has been "repudiated" in Illinois,3

1 As to the administrator representing the land, in this sense, see the following: Moore v. Starks, 1 Ohio St. 369; Wilkinson v. Leland, 2 Pet. 657; Perkins v. Fairfield, 11 Mass. 227; Rice v. Parkman, 16 Mass. 328; Borden v. The State, 11 Ark. 519; Tongue v. Martin, 6 H. & J. 23; Sohier v. Mass. Gen'l Hos. 3 Cush. 487.

2 Florentine v. Barton, 2 Wall. 216; Beauregard v. New Orleans, 18 How. 503; Pennoyer v. Neff, (5 Otto,) 95 U. S. 715; Green v. Van Buskirk, 5 Wall. 307; Christmas v. Russel, 5

Wall. 306; Story's Conflict of Laws,

592; Melhop & Kingman e. Doane, 31 Iowa, 397; Moore v. Shultz, 13 Pa. State, 102.

Donlin v. Hettinger, 57 Ill. 348; Fell v. Young, 63 Ill. 106. See, also, Clark v. Thompson, 47 Ill. 25; Herdman v. Short, 18 Ill. 59; Gibson . Role, 27 Ill. 88; Botsford v. O'Con nor, 57 Ill. 72; Johnson v. Johnson, 30 Ill. 215. But, see Mason v. Wait, 5 Ill. 127; Smith v. Race, 27 Ill. 387; Mulford v. Beveridge, 78 Ill. 455.

And pro

and not followed by the State courts in Wisconsin. bate sales in Indiana, without notice to the heirs, is held void. § 572. Whether Notice May be Omitted When not Expressly Required by Statute. There is a popular error, prevailing in several of the States, in the opinion that where statutes require probate judges to give notice to all interested in the decedent's estate before condemning it to be sold as a thing indebted to satisfy the creditors' liens, such notice must be given, but need not be when not required by statute. While there might be a proceeding against a thing, without any notice of any sort, (which would be binding fictitiously on that thing, if it had been previously abandoned, but not on any person whatever,) the erroneous doctrine goes so far as to hold all the world bound, without notice, if the legislature choose to have it so! It is needless to argue the unconstitutionality of all legislative enactments for taking away one's own, without a hearing of him if he wants to be heard-by process in rem or otherwise. It does not lie in the power of the legislature of a State, or of the Congress of the United States, to enact a law for the condemnation of property in rem without notice to interested parties, so as to bind those parties. There are decisions, however, which seem contrary to the view of notice herein expressed. 3

§ 573. Analogy of Probate Practice in Louisiana to Admiralty Causes in Rem. Probate proceedings in rem may be illustrated by reference to the practice in the civil-law State of Louisiana. There, the administrator's relation to personal property is precisely the same as to real. He becomes legally possessed of all, but only for the purpose of administration; the purpose of settling the succession by paying the debts and transmitting the residue to the heirs. Being, in this capacity, the custodian of all the decedent's estate, he publishes a notice for all creditors to present their claims; he causes an inventory

1 Post, S$ 574–576.

2 Babbitt v. Doe, 4 Ind. 355; Doe v. Anderson, 5 Ind. 33; Doe v. Bowen, 8 Ind. 197; Gerrard v. Johnson, 12 Ind. 636; Hawkins . Hawkins, 28 Ind. 70.

See Danance v. Preston, 18 Iowa, 396; Banta v. Wood, 32 Id. 469; George v. Watson, 19 Tex. 354; Alexander. Maverick, 18 Tex. 179; Thomas v. Southard, 2 Dana, 475; Spencer v. Shehan, 19 Min. 338; Mon. tour v. Purdy, 11 Min. 384.

of all the assets to be prepared with a list of all the recorded liens; he files a tableau exhibiting all the debts which he admits to be owing, usually arranging them according to rank, and petitions the court to have public notice given to all persons, and for the homologation of his account after the expiration of the legal delay allowed for all opponents to appear and claim the property, or present omitted debts, or contest any item already on the tableau, or dispute the rank given to admitted creditors, or make any opposition whatever. Then follows the hearing of all the contending parties; and, upon due proof of the indebtedness, the estate is condemned to pay. The decree is not, in terms, a condemnation of the estate, but it is that in substance.

But often the condemnation precedes the hearing of the oppositions, and the judgment upon particular claims; as when there is proof to the court that the succession is insolvent; or that, if not insolvent, it is necessary to convert a portion of it into cash in order to pay the debts. If the court, upon such proof being made, should condemn the whole estate, or a specified portion, to be sold to pay debts, we have an example of an order in rem preceding the hearing of the opposition. But a sale thereunder could hardly be said to result in the title paramount, unless the confirmation should be deferred till after all appearers in response to notice had been heard.

When the decree of condemnation, (by whatever name desig nated,) has been regularly rendered by a competent probate court having jurisdiction of the subject matter; and all interested parties have been heard, or have had the opportunity of being heard; and sale has followed the decree, and homologation has followed the sale, the purchaser has the title paramount. The estate being settled, the court orders the heirs to be put in possesion of the surplus proceeds of the sold property, (if any,) and of all the unsold part of the res or estate; and then the administrator gets his discharge.

The system of procedure is succinctly described in the Louisiana Civil Code and Code of Practice, which closely follow the Code Napoleon, and which contain not merely statutory regulations but a statement of principles.

The decisions of that State treat probate proceedings as in rem, and hold that all liens, including mortgage liens, are removed by the decree and sale, from the property to the proceeds.

1

The Succession of Hawkins shows that ordinary claims against a debtor become general liens against his property upon his death; and, upon sale of the property for the purpose of paying debts of a succession, the general liens are transferred to the proceeds; but, in marshalling the liens, the specific ones which existed against the property before sale and which now rest upon the proceeds, all outrank the general liens.

§ 574. Practice in Other States. In Alabama, the Supreme Court say that it is the "settled doctrine" that a probate proceeding for the sale of a decedent's land, is in rem. And in many other of the States, such proceedings are in rem, though in most of them, the decree is not conclusive against the world, for want of notice and judgment by default.3 In Wisconsin, while the United States Circuit Court follows the GrignonAstor case, and that of Comstock v. Crawford, (both from

1 Wooley v. Russ, 24 La. Annual R. 482; Durand v. Dubuclet, Id. 155; Succession of Armat, 20 Id. 340; Wright . Cummings, 19 Id. 353; Millie v. Herbert, Id. 58; Succession of Guerney, 14 Id. 632; Succession of Wadsworth, 2 Id. 966; Succession of Hawkins, Id. 923; Succession of Day, Id. 895; Gibson v. Foster, Id. 503.

2 Wyman . Campbell, 6 Porter, 232; Satcher e. Satcher, 41 Ala. 26; Lightfoot. Doe, 1 Id. 479; Rivers v. Thompson, 43 Id. 633; King v. Kent, 29 Id. 542; Matheson v. Hearin, Id. 210; Field v. Goldsby, 28 Id. 218. But, see the case of Garrett v. Bonner, 59 Ala. 513, in which it is said that such proceeding is in rem, but is changed to a suit in personam if appealed or removed by writ of error, to test the regularity of the proceedings.

3 Wright e. Jordan, 71 Ind. 1; West

v. Townsend, 12 Ind. 434; Moore v. Shultz, 13 Pa. State, 103; West Pa. R. R. v. Johnston, 59 Pa. State, 290; Cadmus v. Jackson, 52 Pa. State, 295; Wilson v. Bergen, 28 N. H. 96; Merrille. Harriss, 26 N. H. 142; Shields v. Ashby, 16 Mo. 471; Chandler v. Burdett, 20 Tex. 42; McMillar v. Butler, Id. 402; Miller's Executors v. Greenham, 11 Ohio State, 486; Willard . Nason, 5 Mass. 240; Torrance, t. Torrance, 53 Pa. State, 505; Johnson v. Collins, 12 Ala. 322; George v. Williamson, 26 Mo. 190; Crall v. Meem, 8 Gratt. 496; McCandlish v. Keen, 13 Gratt. 615; Corwin c. Merritt, 3 Barb. 341; Bloom v. Burdick, 1 Hill, 130; Schneider v. McFarland, 2 N. Y. 459; Williams v. Childress, 25 Miss. 78; Gelstrop v. Moore, 26 Miss. 206; Miller v. Miller, 10 Tex. 319.

4 Comstock v. Crawford, 3 Wall. 396, 403, 404; Mohr v. Manierre, 101 U. S. 417, (7 Bis. 419.)