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istration, to settle the accounts of executors and administrators and guardians and transact all business pertaining to the estates of deceased persons, minors, idiots, lunatics, persons non compos mentis and common drunkards, including the sale, settlement, partition and distribution of the estates thereof. Therefore, under the Constitution, while county courts are, as to the enforcement of criminal statutes, and the trial of civil litigated matters, courts of limited jurisdiction, they are as to probate matters courts of general jurisdiction, standing substantially in the same relation to probate jurisdiction as the district courts do to civil and criminal jurisdiction. Possibly county courts, as to probate matters, are courts of general jurisdiction in a broader sense than are the district courts, because exclusive probate jurisdiction is conferred upon the county courts, while the Legislature reserves the right to modify the jurisdiction of all courts in civil and criminal matters, except the county courts as to probate jurisdiction. It may be said that the county courts of the state of Oklahoma are, in the exercise of probate jurisdiction, courts of general jurisdiction in the most liberal sense. Much of the uncertainty as to the conclusive effect of the proceedings and judgments of courts exercising probate jurisdiction has arisen because of the fact that such courts were originally of a very limited jurisdiction, even as to the estates of minors, incompetents and decedents, committed to their care. Judicial expression and judicial dictum in relation to probate jurisdiction have hardly kept pace with the legislation broadening such jurisdiction and the authority of the courts exercising the same. The tendency has been to cite and follow the earlier cases where such courts were acting under statutes conferring limited jurisdiction, rather than to take proper cognizance of the enlarged jurisdiction of such courts. This distinction is most vital perhaps when deal

3 Constitution and Enabling Act of Oklahoma annotated (Williams) § 198; Magee v. Big Bend Land Co., 51 Wash. 406, 99 Pac. 16; Christianson v. King County (C. C. A.) 203 Fed. 894.

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ing with the jurisdiction of probate courts where their proceedings are collaterally assailed. There has been a disposition in some jurisdictions, sometimes warranted by the limited authority conferred, and at other times not, to materially impair the conclusive effect of probate proceedings by the assumption that in courts of such limited jurisdiction the record must furnish complete evidence of a compliance with every statutory provision before the judgments of such courts will be recognized as res judicata. If such a rule is justified by statutory limitations upon probate jurisdiction in other states, it is not so in the state of Oklahoma. The same presumption of good faith and the rightful exercise of jurisdiction should be accorded the proceedings, orders, and judgments of the county courts in the exercise of probate jurisdiction as is accorded to the orders, judgments, and decrees of the district courts of the state. The statement contained in the opinion of the Supreme Court of the state that the jurisdiction in probate matters of the United States courts in the Indian Territory was limited and special, could not well have application to the constitutional probate courts of Oklahoma.

§ 176. Probate Code-History of.-The Probate Code of the state of Oklahoma was taken from, and is a substantial literal re-enactment of, the Probate Code of Dakota of 1887. It was adopted December 25, 1890, and was carried into the compilation of the Statutes of 1890 and of 1893 and Wilson's Statutes of 1903 without change, and into the Compiled Laws of 1909 with such modifications as were effected by the Constitution of the state and of the change from territorial form of government to state government. Minor modifications were made during the first session of the Legislature following statehood, but none materially affecting the procedure for the appointment of a guardian, or his management, control, and disposition of the estate of the minor. In 1910 a number of

4 In re Bolin's Estate, 22 Okl. 851, 98 Pac. 934.

changes were made, particularly with reference to the procedure upon application for letters of administration, notice to creditors and personal claims, proof of service of notice, notice of order to show cause upon sale of real estate and waiver thereof, waiver by persons interested, notice of sale, notice of final settlement of account, prescribing procedure for sale where lands not divisible, notice of sale of real estate under guardianship proceedings and waiver thereof, and the provision for the ascertainment and adjudication of the heirship of decedents. The amendments effected by these provisions are found in the Revised Laws of 1910.5 The rules of procedure prescribed by these amendments differ materially in the particular matters affected from the rules prescribed in previous statutes. These amendments to the probate procedure were enacted at an extraordinary session of the Legislature begun on the 20th day of January, 1910, and ending on the 19th day of March, 1910. The act containing such amendments not containing an emergency clause they became effective ninety days after the 19th day of March, 1910.

The Oklahoma Probate Code is but an adoption and extension of the Dakota statutes over the territory of Oklahoma, and the Dakota Code was but an adoption and extension of the California statutes, with very slight modifications, over the territory of Dakota. The California Code. is the basis, not only of the Dakota and Oklahoma Codes, but also of Arizona, Idaho, Montana, Utah, Wyoming, and Nevada, and perhaps some other states. Many of the provisions of the Probate Codes of these states are identical with those of Oklahoma. Some differ but slightly, and others materially. The California Probate Code has been frequently amended and a number of times in its most important provisions.

The probate statutes as amended by the Act of 1910 are found in the following sections of the Revised Laws of 1910: 6251, 6252, 6336, 6337, 6374, 6375, 6381, 6440, 6475, 6559.

§ 177. Minors-Who are.-The statutes in force in the territory of Oklahoma at the incoming of statehood, and extended over and made applicable to the state of Oklahoma by the Enabling Act, declared males under twenty-one years of age and females under eighteen years of age to be minors. Under the Oklahoma territorial statutes marriage conferred authority upon a minor, regardless of his age, to hold, mortgage, convey, or make any contract relating to real estate or any interest therein. By an act of the Legislature, effective June 5, 1909 (Laws 1909, c. 13), the right of a married minor to convey real estate was limited to that acquired after marriage. On May 27, 1908, Congress declared that the probate courts of the state of Oklahoma should have jurisdiction over the lands of the minor members of the various Indian tribes, and that the term "minor" or "minors," as used in said act, should include all males under the age of 21 years and all females under the age of 18 years. This statute undoubtedly determines the age of majority for all purposes from the date it became effective, May 27, 1908. It is also probable that the Oklahoma statute conferring upon married minors the privilege of conveying their real estate was never applicable to members of the Five Civilized Tribes of Indians as to their allotted or inherited lands. The term "minor" or "minors" therefore includes, as applied to members of the Five Civilized Tribes, males under the age of 21 years and females under the age of 18 years, and marriage neither terminates the guardianship as to the lands of a minor nor is it a bar to the appointment of a guardian.®

§ 178. Appointment of guardians for minors.-County courts are authorized,' where it is necessary or convenient,

6 Bell v. Cook (C. C.) 192 Fed. 597; Jefferson v. Winkler, 26 Okl. 653, 110 Pac. 755; Stevens v. Elliott, 30 Okl. 41, 118 Pac. 407; Kirkpatrick v. Burgess, 29 Okl. 121, 116 Pac. 764; Yarbrough v. Spalding, 31 Okl. 806, 123 Pac. 843; Chapman v. Siler, 30 Okl. 714, 120 Pac. 608; Gill v. Haggerty, 32 Okl. 407, 122 Pac. 641; Grissom v. Beidleman, 35 Okl. 343, 129 Pac. 853; Priddy v. Thompson (C. C. A.) 204 Fed. 955.

7 Rev. Laws 1910, § 6522.

to appoint guardians for the persons and estates, or either or both of them, of minors who have no guardian legally appointed by will or deed, and who are residents of the county, or who reside without the state and have an estate within the county. Such appointment may be made on the petition of a relative or other person in behalf of the minor. The judge is required, before making an appointment, to cause such notice as he deems reasonable to be given to the relatives of the minor residing in the county, and to any person having the care and custody of such minor.

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The minor must be without a guardian, must be a resident of the county, or own property therein and be a nonresident of the state. The character and length of the notice of the application for the appointment is left to the discretion of the judge, but notice of some character must be given to relatives of the minor residing in the county, and to the person having the care of such minor, whether a relative or not.10 If the minor be under the age of fourteen years the probate judge may select the guardian; if over the age of fourteen years he may nominate his own guardian, subject to the approval of the court. The statute, however, does not mean that the probate judge may, without notice to, or in disregard of, the wishes of the parent or natural guardian, nominate and appoint such person as he may see fit. Care should be exercised to see that the statute is complied with in invoking the jurisdiction of the court to appoint a guardian. If such appointment is

8 Wortham v. John, 22 Okl. 562, 98 Pac. 347; Fox v. Minor, 32 Cal. 111, 91 Am. Dec. 566; Burroughs v. De Couts, 70 Cal. 361, 11 Pac. 734; Estate of Hathaway, 111 Cal. 270, 43 Pac. 754; In re Lewis, 137 Cal. 682, 70 Pac. 926; In re Eikerenkotter's Estate, 126 Cal. 54, 58 Pac. 370; Ex parte Miller, 109 Cal. 643, 42 Pac. 428; Murphy v. Superior Court, 84 Cal. 592, 24 Pac. 310.

Guardianship of Raynor, 74 Cal. 421, 16 Pac. 229; In re Taylor's Estate, 131 Cal. 180, 63 Pac. 345; De la Montanya v. De la Montanya, 112 Cal. 131, 44 Pac. 354: Guardianship of Danneker, 67 Cal. 643, 8 Pac. 514.

10 Whyler v. Van Tiger (Cal.) 14 Pac. 846; Gronfier v. Puymirol, 19 Cal. 629; Asher v. Yorba, 125 Cal. 513, 58 Pac. 137; In re Lundberg, 143 Cal. 402, 77 Pac. 156; In re Chin Mee Ho, 140 Cal. 263, 73 Pac. 1002.

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