CHAPTER LXXXV. PROBATE COURT. SECTION 1. Probate court established in each county, consisting of one officer. 2. Probate justices, to be elected in same manner as justices of the peace. 3. How elected; to be sworn; to keep offices at county seats. 4. Powers and jurisdiction as justices of the peace; appeals, certiorari, &c. 5. Jurisdiction when executors, &c., are parties, to extend to one thousand dollars. 6. Additional powers, as courts of probate, particularly defined. 7. How proceedings made matters of record, and used as evidence. 8. Probate court to sit once in each month; to have seal; process; record to be kept; books, &c., how paid for. 9. Matters of law and fact, how determined; appeals, &c. 10. Proceedings of probate court to be reported to SECTION 1. SECTION next circuit court; when to become matters of record. 11. Private seal, when may be used. 12. Administrators and executors may be sued on their bonds, in probate court. 13. Books, records, &c., how to be kept; entries, &c., to be made. 14. Power of probate to enforce process; duty of officer serving same, and his fees. 15. Account and record books. 16. Process, &c., to be issued in the name of the people tested, sealed, &c. 17. Power as to proof and administration of wills, 18. If office become vacant, how filled. 20. Appeals allowed from acts of probate justice, 21. Jury trial secured to parties. There shall be and remain, as now established, in each county of this State, a court of probate, to be composed of one officer, to be styled a probate justice of the peace. SEC. 2. Such probate justices of the peace, shall be elected at the general elections to be held in their respective counties, as provided by law, in the same manner as provided for the election of other justices of the peace, and shall hold their offices for the term of two years, and until their successors shall be elected and qualified. SEC. 3. The election of such probate justices of the peace shall, in all respects, be conducted and returns thereof made, in the manner provided or to be provided by law in the case of the election of justices of the peace. The said probate justices of the peace so to be elected under the provisions of this chapter, shall hold and keep their offices at the county seats of their respective counties, and shall take the same oath, in the same manner, and give like bond and security as are required of other justices of the peace. SEC. 4. Said probate justices of the peace are hereby vested with the same powers and jurisdiction in civil cases which are or shall be conferred by law upon other justices of the peace, and in the exercise of said powers and jurisdiction, the rules of law which are or shall be applicable to ordinary justices of the peace, shall be applicable to the probate justices of the peace hereby created, and to all proceedings before them, growing out of such power and jurisdiction; and appeals may be taken from, and writs of certiorari prosecuted upon their judgments rendered under the power conferred in this section in the manner provided in case of similar judgments rendered by justices of the peace. SEC. 5. The said justices of the peace hereby created, shall also have jurisdiction of all cases of debt and assumpsit, express or implied, where executors or administrators shall be parties, plaintiff or defendant, and when the amount on either side claimed to be due shall not exceed one thousand dollars. SEC. 6. In addition to the judicial powers conferred in the preceding sections, the said probate justices of the peace shall have, possess, and exercise within their respective counties, the following ministerial powers, to-wit: 1st. Power to administer all oaths or affirmations concerning any matter or thing before them: 2d. To issue and grant letters of administration, letters testamentary and letters of guardianship, and repeal the same: 3d. To take probate of wills, and record the same: 4th. 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: 5th. To receive, file and record inventories, appraisement bills and sale bills, as is required by the existing laws: 6th. 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 they may issue citations and attachments into every county in this State, to be executed by the sheriffs of the said counties: 7th. To do and perform all other acts of a ministerial character which the judges of probate are now authorized to perform in their respective counties: 8th. To take and certify acknowledgments and proofs of deeds and other instruments; to take affidavits and depositions; and to administer oaths, to the same extent and with like effect, as other justices of the peace. SEC. 7. If it should become necessary to use copies of the proceedings had before such probate justices of the peace under the ministerial powers aforesaid, or any of them in any other State or territory, the parties interested therein may procure a transcript thereof, and, on motion, the same may be filed in the clerk's office of the circuit court, and shall be considered a matter of record in said court, and copies thereof may be certified as other records of said court are or may be. SEC. 8. The said courts shall sit in their respective counties throughout this State, on the first Monday in every month, and at such other times as extraordinary circumstances may require, and continue open until all the business pending before them shall be disposed of. The said courts shall each have a seal, and may issue all process necessary under the hand and seal of the probate justice, and all such process shall bear date when issued: the said probate justice shall record all his proceedings at length, in a book or books, by him for that purpose furnished : for all necessary books so furnished, the respective county commissioners' courts shall allow the said probate justice, a reasonable compensation, to be paid out of the county treasury. SEC. 9. All matters of law and of fact shall be determined by said court, when properly before it; and in all cases, an appeal or writ of certiorari shall lie to the circuit court of the county, to be prosecuted in the same manner as appeals and writs of certiorari are prosecuted from the decisions of other justices of the peace. SEC. 10. The said probate justices of the peace are hereby vested with all the judicial powers usually exercised by former judges of probate, but in all cases of the exercise of such judicial powers, they shall report their proceedings therein to the next term of the circuit court of their respective counties on the first day thereof, for approval or rejection of such circuit court; and if such proceedings shall be approved by the circuit court, the same shall be considered as a matter of record in said court. SEC. 11. Letters of administration, letters testamentary, and all process, certificates and all other papers, made or issued by probate justices of the peace, to which the private seal of such justice is or may be affixed, because of their being no public seal, shall be as valid, to all intents and purposes, as though a public seal had been used. SEC. 12. Administrators and executors, and their sureties may be sued on their bonds in the probate court, subject to the limitation contained in section five of this chapter, and the proofs and proceedings shall be as in ordinary cases. SEC. 13. The probate justices of the peace shall make, keep and preserve complete records of all wills, testaments and codicils, and the probate thereof, all letters testamentary and of administration, and all bonds taken of executors or administrators, and shall file and preserve the originals of the aforesaid papers, and all inventories, appraisements, sale bills and other exhibits, presented to and received by said courts, appertaining to the administration and settlement of estates: and shall enter on their order books the amount of all such inventories, appraisements, sale bills and other exhibits, under a proper heading for easy reference: and shall enter upon their books of record all matters, controversies and suits, that shall arise for decision or adjudication before them, with the names of the parties, and the judgment or opinion of the court, in order that there may be no difficulty in taking appeals. SEC. 14. The probate justices of the peace shall have power to issue all process necessary to enforce the judgments and decrees of said court, which process shall be directed to the sheriff or to any constable of the county. And any sheriff or constable, to whom such process shall be directed, is hereby authorized and required to execute the same, and they shall be entitled to the same fees as are allowed for serving like process issued by a justice of the peace. SEC. 15. The probate justices of the peace shall provide well bound books, and enter therein the accounts of executors and administrators, so as to make the same complete records of all accounts allowed, and all settlements of estates made in said courts. SEC. 16. All letters testamentary, letters of administration, either with or without the will annexed, letters of administration to collect, and de bonis non; writs, summonses, citations, subpoenas, and all other processes which may at any time be made or issued by the justice of probate, in the discharge of his official duties shall be made and issued in the name of the people of the State of Illinois, bear teste in the name of such probate justice, and be sealed with the seal of the said court of probate. SEC. 17. The probate justices in each county in this State shall have jurisdiction and authority to hear and determine all causes, matters and controversies testamentary, which shall be brought before them, touching the proof of wills, testaments and codicils, and may grant probate thereof; and shall hear and determine the right of administration of estates of persons dying intestate; and to do all other things touching the granting of letters testamentary, and of administration, and the settlement of estates. SEC. 18. When any probate justice of the peace shall die, resign, refuse to qualify, or be removed from office, or the office shall in any way become vacant, such office may be filled by a special election to be called and held in the same manner as in the case of justices of the peace. And if any probate justice of the peace shall refuse to qualify and give bond, in manner and within the time specified in case of other justices of the peace, the office shall in like manner be deemed vacant. SEC. 19. The probate justices of the peace, when acting as ordinary justices of the peace, shall be entitled to the fees allowed by law to justices of the peace for similar services, and when acting under the powers usually exercised by judges of probate, they shall be allowed such fees as shall be from time to time allowed by law. SEC. 20. Appeals may be taken from all judgments, decrees and decisions rendered by probate justices of the peace, while acting in the capacity of judges of probate, whether such acts be performed in their judicial or ministerial character; such appeals to be taken and prosecuted in the same manner, and with like effect as appeals from the judgments and decisions of other justices of the peace. SEC. 21. Parties litigant, in suits before such probate justices of the peace, whether acting as courts of probate or justices of the peace, shall be entitled to trial by jury, as is provided in suits before other justices of the peace. SECTION 1. In case any person or persons shall usurp, intrude into, or unlawfully hold or execute, any office or franchise, it shall and may be lawful for the attorney general, or the circuit attorney of the proper circuit, with the leave of any circuit court, to exhibit to such court, one or more information or informations, in the nature of a quo warranto, at the relation of any person or persons desiring to sue or prosecute the same, who shall be mentioned in such information or informations, as the relator or relators against such person or persons so usurping, intruding into, or unlawfully holding or executing any such office or franchise, and to proceed therein, in such manner as is usual in cases of informations in the nature of quo warranto. If it shall appear to said court that the several rights of divers persons to the same office or franchise, may properly be determined on one informa tion, it shall and may be lawful for the said court to give leave to exhibit one such information against several persons, in order to try their respective rights to such office or franchise; and such person or persons against whom such information or informations in the nature of a quo warranto shall be sued or prosecuted, shall appear and plead, as of the same term in which the said information or informations shall be filed, unless the court shall give further time to such person or persons against whom such information or informations shall be exhibited, to plead; such person or persons, who shall sue or prosecute such information or informations, shall proceed thereupon with the most convenient speed that may be. SEC. 2. In case any person or persons against whom any such information in the nature of a quo warranto, shall, in any of the said cases, be exhibited as aforesaid, shall be found or adjudged guilty of any usurpation or intrusion into, or unlawfully holding and executing any office or franchise as aforesaid, it shall and may be lawful for the said courts, as well to give judgment of ouster against such person or persons, of and from any of the said offices or franchise, as to fine such person or persons, respectively, for his or their usurping, intruding into or unlawfully holding and executing any such office or franchise; and also to give judgment that the relator or relators in such information named, shall recover his or their costs of such prosecution; and if judgment shall be given for the defendant or defendants in such information, he or they for whom such judgment shall be given, shall recover his or their costs therein expended, against such relator or relators. SEC. 3. It shall be lawful for the court in which any information as aforesaid shall be exhibited, to allow to the relator or relators, and the defendant or defendants such convenient time to plead, `reply, rejoin, or demur, as to said court shall seem just and reasonable. SEC. 4. Appeals may be taken from the decision of the circuit court, upon such terms as the said circuit court shall prescribe; or writs of error may be prosecuted whenever the supreme court, or any of the judges thereof in vacation, upon being presented with a copy of the record, shall certify that there is reasonable cause for the bringing such writ: The said supreme court, or judge in vacation, may impose such terms and conditions upon the party wishing to prosecute such writ of error, as to the said court or judge may seem reasonable and just. The allowance of a writ of error shall operate, after notice thereof, as a stay of proceedings in the circuit court, until the determination. But writs of error without supersedeas, shall issue as writs of right, as in other cases. APPROVED: March 3, 1845. |