By the Constitution of this State as originally adopted, the County Judge in each county of the State was authorized to perform the duties of Surrogate, or Probate Judge.  Under that provision of the Constitution, the Legislature from time to time enacted laws prescribing the duties of the Probate Judge and determining the powers of the Court; and the County Judges of the various counties have held Probate Courts and performed duties as Probate Judges.  The same general system prevailed, with the single exception of the City and the County of San Francisco, until December 31, 1879, on which day the old Constitution, with its amendments, was superseded by the new Constitution, and all the business of the former Courts passed to the Courts constituted by that instrument.


     The Probate Court of the City and County of San Francisco, as a distinctive tribunal, and with a Judge of its own, came into existence by virtue of the constitutional amendments proposed in 1861, ratified September 3, 1862 (Art. VI, Sec. 1, old Constitution), and the Act of the Legislature approved April 20, 1863 (Stat. of Cal. 1863, p. 338, et seq.), the County Judge Thereupon losing jurisdiction of probate proceedings.


     The first Probate Judge elected was the Hon. Maurice C. Blake (afterwards the Judge of the Municipal Criminal Court).  Judge Blake presided over the probate Court for the first term (four years), from January 1, 1864, to December 31, 1868.  He was succeeded by the Hon. Selden S. Wright, who held the office for the term of from January 1, 1868, to December 31, 1871.  Judge Wright subsequently held the office of County Judge for four years, ending December 31, 1879.


     From January 1, 1872, to December 31, 1879, two terms, the writer presided over the Probate Court, and was thereby permitted to devote eight years of professional life to labor in one of the most satisfactory, if not always the most exciting, departments of civil jurisprudence.  His predecessors are too well known to the Bar and citizens to require any tribute here to their sound judicial tendencies or to the geniality of their dispositions; but he may be permitted to say that it was owing in great part to their many professional good qualities that the Probate Court became a tribunal of well compact and uniform in its rulings as traditional in the cultivation of courtesy and good-felling between the Bench and the Bar, which reputation and character, it was ever the writer’s pride to endeavor to maintain.


     The jurisdiction of Probate courts in this State was much more extensive than in many other States.  It had exclusive jurisdiction of the probate of wills, the administration of all estates, as well of testates as of intestates, and of real as well as personal property; the appointment of guardians for infants and persons of unsound minds, and the management of the property of such infants and the persons.  In addition to which, the Judge divided with the County Judge the examination of persons supposed to be insane.


     The volume of business flowing through the Court naturally grew with the growth and wealth of the city.  Its importance may well be conceded when it is considered that the average period which elapses from the time that a parcel of real estate once passes through the Court as part of a succession, until again requires administration, is ten years; that in California (a peculiarity of law not obtaining in other States) all realty becomes assets in the hands of the administrator, to be marshalled by the Court for distribution, and that every such adjudication is a careful ascertainment and expunging of all claims and obligations of decedent, a matter that, by reason of its ex parte nature, requires the greatest personal care and attention from the Judge, with a constant fear that some covert error may slip into ambush during the proceeding, to emerge, perhaps, when Judge and counsel have passed away, clouding titles and impairing values of real property.


      The writer claims little for the present volume, save that it may often suggest a convenient nisi prius rule, to serve until the higher tribunal has given a more authoritative decision.


      The conservative practitioner in the Probate Court is, necessarily, of timid professional instincts.  He dreads a contest, in that it endangers the complete integrity of the estate, the care of which he has undertaken; and his conciliatory policy is to arrive at speedy solutions, which he can anticipate at his own desk, and provide for and accommodate himself to with some degree of certainty.  Hence the appeal of questions touching decedents' or minors' estates is not frequent; and what is sometimes termed judicial legislation has not, in this State, been as lavishly expended upon probate matters as the counsellor has often, perhaps, desired.


     It is true, there have been severe and stormy contests in the Probate Court, which have brought out all the means of professional or oratorical displays in the power of the advocate.  But such battles have not generally been satisfactory, even to the successful parties, and, from the personal bitterness which almost invariably follows in the train of quarrels among relatives over estates left by the dead, have not always been pleasant for after contemplation by the Judge.


      Some reminders of such strife are retained in the present volume in the shape of selected Charges to Juries.  It is not often that courts of review pass upon instructions so given, except in a shreddy and piece-meal way; and it was therefore thought advisable, following in that regard that example of the learned Judges of the United States Circuit and District Courts (Sayer's Reports), to furnish, as it were, a framework, whereby the practitioner might be guided in the instructions to be asked, and the trial Judge might find ready to his hand a synthesis of propositions, which he could enlarge, amend, or discard at his discretion.


            No thought of the publication of any of the cases included in this volume was entertained until within the past year.  The volume has, therefore, been gathered together from loose notes of the Judge, reports appearing in print at the time of decision, and opinions on file.  Many of the opinions consist only of the points decided, and it has been deemed more advisable to present such as they are rather than attempt present elaboration.  The collection has been made, too, in the midst of official duties demanding constant attention, and under circumstances which prevented the exercise of great care in revision.


     The writer cannot send this little volume from his hands without expressing in some measure the great obligation he has been under, during his entire judicial career, to the Bar of San Francisco, and cannot give such expression more heartily than by quoting words used by him on retiring from the Probate Court:


     “No man, upon any bench, can properly and faithfully perform the duties of his office unless he be aided by the members of the Bar with whom his is brought in contact.  The members of the Bar of San Francisco have uniformly aided me in the performance of duties here; and whatever of success there has been, is in a great measure owing to your faithfulness and kindness.  The conduct of the Bar has been uniformly kind, courteous, and considerate.  We have here dealt much with widows and orphans---often with those who were destitute of means.  I have never applied to any attorney to render gratuitous professional aid, but it has been freely and faithfully given.”








Transcribed by Patricia Seabolt & Sue Wood.

© 2007 Patricia Seabolt & Sue Wood.