Payonline

Patrick DavenportProbate CourtTagsLicensesElectionsRecordingefilingLinksFormsPhone & Address DirectoryTag Reminder Contact Us Login

Calendar

June 2017
Su M Tu WTh FSa
 
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30
 
Holidays
  • JEFFERSON DAVIS' DAY


Houston County Logo

Click to Print

Probate Court History

THE HISTORICAL BACKGROUND OF THE OFFICE OF THE PROBATE JUDGE

The organization of the probate courts in Alabama would be difficult to understand without reviewing the historical development of the office. The development of these courts was greatly influenced by colonial institutions that preceded them and these in turn were to a large extent modeled after English practice. Thus, to understand the organization of our present-day courts, it is necessary to review their development in England and in the colonies.


A. THE ENGLISH FOUNDATION

The history of probate of wills and administration of estates in Great Britain is closely related to the history of the ecclesiastical courts in that country. Unfortunately, the exact date of origin is not known with any certainty for either the ecclesiastical courts or probate and administration. Sir Henry Spelman set 1151 as the date that civil and canon law was imported to England, while Sir William Blackstone set it around the 12th century. However, it seems rather definite that neither kind of court had been established before the Norman conquest in 1066.

In 1066 the probate of wills and administration of estates did not take the form that we know at the present time. However, such jurisdiction and procedures as did exist were exercised by the secular courts, generally the county court, which had been established in England during the pre-Norman period. Both the civil and the ecclesiastical authorities united for the administration of justice with no distinction between secular and spiritual matters.

Following the conquest, the Norman laws and customs which were instituted in England divided the jurisdiction over legal matters between spiritual and secular courts. Gradually, jurisdiction over various phases of probate and administration was transferred from the secular to ecclesiastical courts. By 1084, some jurisdiction over the administration of estates had been transferred to the ecclesiastical courts. A century later the spiritual courts also had acquired jurisdiction over certain cases involving wills, and it may be surmised that authority to probate testaments followed shortly thereafter. This authority was fully established by the fourteenth century.

The division of authority between secular and spiritual courts was based upon the type of property involved. The spiritual court exercised jurisdiction over personal property, while the secular courts exercised jurisdiction over real property. During the reign of Henry I (1100-1135) an attempt was made to reunite the ecclesiastical and civil courts into one system. However, the clergy opposed the unification, and when Stephen ascended to the throne in 1135 separate jurisdictions were re-established. From that point on the ecclesiastical courts, although their authority was challenged from time to time by overloads and by common law courts, remained as separate system of courts until the nineteenth century.

Another significant legal development during this period was the rise of chancery courts. Through various means these courts had gained and were exercising extensive jurisdiction over the administration of estates by the eighteenth century.
During the period of America's colonization, jurisdiction over the probate of wills and administration of estates in Great Britain was divided among the ecclesiastical courts, common law courts, and chancery courts. Influence from this practice in the handling of probate and administration can be seen in several colonies. In fact, the division of jurisdiction over the probate of wills and administration of estates among courts of probate or other inferior courts exercising this authority, chancery courts, and law courts in some of our states today can be traced to this early English practice. Although occurring after the colonization period, the development of courts of probate in Great Britain culminated in 1857 when they were formally established a separate courts.


B. EARLY AMERICAN PRACTICE

Early American statesmen naturally were influenced by English practice in establishing colonial governments, including the organization of the court system. However, ecclesiastical courts were never established in American. Therefore, the division that existed in Great Britain never took root in this country.

Originally colonial governments tended to vest all jurisdiction over judicial matters in the ordinary civil courts. This practice evoked criticism from the Crown because it did not adhere to English law and custom. To meet this criticism, the jurisdiction over probate to wills and the administration of estates generally was assigned to the governor and his assistant, although it was common for the legislature itself to administer estates. However, this arrangement failed to meet the needs of a rural society, and local courts that were closer to the people to be served were established throughout each colony. These courts were known by various titles. The most common names were probate courts, orphans' court and surrogates' court. Courts of ordinary were common. The county court in several colonies was vested with this jurisdiction.

Separate probate courts were established in some colonies at a very early date. For example, Connecticut established a probate court in Hartford, New Haven, Fairfield and New London counties in 1716. Probate courts were established in Massachusetts in 1784. However, the practice in most colonies and in the newly organized states was to assign this jurisdiction to another court, most frequently the county court. In 1645, Virginia assigned jurisdiction over probate and administration to the county court. These courts were usually multi-headed bodies with numerous other responsibilities. Ordinarily, the county court was the chief administrative and legislative body in the county, in addition to its role as an inferior court with limited criminal and civil jurisdiction. A court of this type, although not always called the county court, exercised jurisdiction over probate and administration in all of the southern colonies at one time or another during the period in which Alabama was being settled.

Even the county courts were required to sit as an orphans' court for exercising jurisdiction over probate and orphans' business. Separate days were set aside for these matters and different rules guided the proceedings. The practice of establishing separate courts or separate divisions resulted in the recognition of probate jurisdiction as a distinct and independent branch of law based upon its own set of principles and rules of procedure. The results are clearly evidence in the current probate practice.

In summary, at an early date in American history, local courts were vested with jurisdiction over the probate of wills and administration of estates. In some colonies separate specialized courts were established in each county to exercise this jurisdiction, while in others the county court or a similar body was vested with this responsibility in addition to several other functions. The most significant aspect of these early courts, however, was the recognition of probate jurisdiction as an independent branch of law in both types of courts. It was from this background that Alabama's first system of courts was established.


C. THE DEVELOPMENT OF THE OFFICE IN ALABAMA

Obviously early Alabama statesmen were influenced by practices in surrounding states and the Mississippi Territory in the establishment of the state's first courts. Although for a short period separate courts of probate had existed in the Mississippi Territory, the practice of requiring the county or inferior court to sit as an orphans' court prevailed. This court, like its counterpart in most other southern states, was also the chief administrative and legislative body in the county and an inferior court with limited criminal and civil jurisdiction. The county court arrangement was continue during the period Alabama was organized as a territory.

The Alabama legislature at its first session established the same type of court system that had existed in the territory with only minor deviations. An inferior court consisting of five members was established in each county. It was required to sit at certain intervals as an orphans' court to handle probate and orphans' business. Moreover, it was the chief administrative and legislative body in the county and an inferior court with limited criminal and civil jurisdiction. In essence, it was simply a carry-over of the territorial county court.

It was not until 1821 that a significant change was made in the county court. In that year the composition of the court was changed from five justices and a clerk to one judge and a clerk. At the time there was established in each county a separate court of county commissioners, consisting of four commissioners and the county judge. This arrangement provided for some separation of the judicial function from the administrative and legislative function at the county level. The county court was vested mainly with the same judicial powers of its predecessor, the county judge with the same powers formerly exercised by the chief justice of the inferior court. The administrative and legislative functions such as the control over roads, ferries, bridges, and the management of public buildings were assigned to the new commissioners' court. No other significant changes were made in the county court until mid-century.

In 1850, a court of probate as we know it today was established in each county. The positions of clerk and judge of the county court were consolidated into an office of judge of probate. Unlike the county judge who was appointed for six year term, the judge of probate was to be popularly elected for a term of six years. Jurisdiction of the old county court was for the most part simply transferred to the court of probate, the major exception being criminal and civil jurisdiction, neither of which has vested in the new court. The judge of probate was given the authority formerly exercised by the court judge and clerk of the county court, with authority to appoint his own clerk. Like his predecessor, the judge of probate was made a member of the court of county commissioners.

Since 1850 there have been several important changes in the legal framework of the office of the judge of probate. Most of the early changes made added new duties to those already assigned or expanded existing areas of responsibility. Additional responsibilities in election administration, licensing and records are good examples of the expansion. The most important addition was made in 1866 when the judge of probate was designated as ex officio judge of the county court. Exceptions to this law were made in several counties between 1866 and 1915. In 1915 the judge of probate was re-established as ex officio judge of the county court in all counties with a population less than 50,000.

Another important addition to the duties of the judge of probate was the designation as judge of the juvenile court in all counties in which a separate juvenile court had not been established. He was vested also with jurisdiction over desertion and non-support cases, both in 1915.

However, not all changes have been addition or expansions to the functions of the office. For example, in 1919 the clerk of the circuit court was designated ex officio clerk of the county court, and in 1935 duties relating to the welfare were transferred to the county welfare department.

Another change in responsibilities came with the adoption of the judicial article. Prior to its adoption in 1973, and the subsequent passage of implementing legislation, Alabama probate judges performed functions as ex officio judges of other courts. The first of these groups of function included the county court. Basically, the county court had original jurisdiction, concurrent with the circuit court, of all misdemeanors committed in the county. Title 13, Sections 313-349 of the 1958 Code of Alabama describe the county courts as they formerly existed in Alabama.

The second set of functions involving another ex officio duty involved the juvenile court. The probate judge, sitting as judge of the juvenile court had original and exclusive jurisdiction over all children under sixteen years of age. That jurisdiction extended to eighteen years of age for girls and at the discretion of the court having jurisdiction of the offense committed, it could be extended to eighteen years of age for boys. The judge had authority to hear, determine, and adjudicate all questions and cases relating to dependency, neglect, and delinquency of children within the above age limits. All cases were tried by the judge who rendered the decision without the intervention of a jury. Moreover, the probate judge acting as juvenile judge could issue judgments and orders for the custody, discipline, supervision, care, protection, or guardianship as determined by the court to be in the best interest of the child. These duties were set forth in the title 13, Sections 351-383 of the 1958 Code of Alabama.

A final function formally assigned to the probate court was the jurisdiction over desertion and non-support cases. This was covered in Title 34, Sections 89-104 of the 1958 Code.

With the adoption of the judicial article, these former duties of the probate court have been placed within the jurisdiction of the district court or, in some instances, the circuit court.

January, 2013, Alabama Law Institute, Handbook for Alabama Probate Judges, Ninth Edition, 1-8, Edited by Penny A. Davis
Pay Online
We Want You!