Studies in Civics. J. T. McCleary
appointment of an administrator to do the work which under a will is done by the executor. In order that an administrator acceptable to the heirs may be appointed, the following steps are taken:
1. Someone interested in the estate petitions for the appointment of a certain person as administrator.
2. Notice of hearing is given by publication, citing those interested in the estate to appear at a certain day if they desire to enter any objection to the appointment.
3. If at the time specified for the hearing no objection is made, the person petitioned for is appointed administrator, and "letters of administration" are issued to him.
Then beginning with the sixth step the proceedings are substantially the same as in case of a will, except that the basis of distribution in the ninth is the law instead of the will.
"As befits an authority which thus pervades the sanctity of a household, crosses the threshold and exposes to public view the chamber of mourning, probate jurisdiction in the United States is exercised with great simplicity of form as well as decorum." [Footnote: Schouler's Executors and Administrators.]
Some Pertinent Questions.
What is a will? [Footnote: See Dole's Talks about Law.] Why must it be in writing? Must it be in the handwriting of the testator? Why are the witnesses essential? Is the form of a will essential? Is it necessary that the witnesses know the contents of the will?
What is the difference between an heir and a legatee? May either be witness to the will? Why? If the witnesses die before the testator, how can the will be proved?
What is a codicil? If there be two wills of different dates, which will stand? What difference does it make whether a person having property makes a will or not?
Group the proceedings in case of a will into three groups.
A minor may have two guardians, one of its person and the other of its property? Why? What is to hinder a guardian from abusing his trust?
DISTRICT, CIRCUIT OR SUPERIOR COURTS.
Jurisdiction.—This court has original jurisdiction in all civil and criminal cases within the district which do not come within the jurisdiction of the justice courts. It has appellate jurisdiction from probate and justice courts as provided by law.
Procedure.—The proceedings are substantially the same as in a justice court except that in criminal cases they are based upon an indictment by the grand jury, and after the arguments the judge "charges" the jury, that is, instructs it regarding its duty.
Pleadings.—The pleadings in the district court are somewhat more elaborate than in a justice court, and a few words in regard to them further than what has already been given may not be out of place here.
The defendant in making his plea may raise a question as to the jurisdiction of the court, or he may ask that the case be thrown out of court on account of some irregularity of the writ upon which it is based. Since these pleas, if successful, simply delay the trial, because a new suit may afterwards be brought, they are called dilatory pleas.
But he may deny the plaintiff's ground of action by denying the allegations of the plaintiff and challenging him to trial. This plea is called the general issue. He may admit the plaintiff's allegations but plead other facts "to avoid their effect." This is called the plea of confession and avoidance. These pleas are on the merits of the case, and are called pleas in bar. There are other pleas of this kind.
"Pleas in bar, except the general issue, may give rise to counter pleas" introduced by the parties alternately.
But the issue may be one of law instead of fact, and the defendant may enter a demurrer, claiming that the matters alleged are not sufficient in law to sustain the action.
Evidence.—Some of the fundamental principles or rules which govern the taking of evidence and the weighing of testimony may properly appear here. These rules are designed to exclude all irrelevant matter and to secure the best proof that can be had.
1. Witnesses must be competent. That is, in general, they must be able to understand the nature and solemnity of an oath. This will usually exclude children below a certain age, insane persons and persons drunk at the time of offering testimony.
2. Witnesses must testify of their own knowledge. Usually they are barred from telling what they simply believe to be the fact or what they have learned from hearsay.
3. Evidence must go to prove the material allegations of the pleadings. It must be confined to the question at issue. It is to be observed that the evidence must not only go to prove the matter alleged, but it must be the material not the superfluous matter. What is material and what superfluous will depend upon the case. Thus if it is alleged that a suit of clothes was obtained by the defendant at a certain time, his obtaining the clothes is the material fact and the time may be superfluous or immaterial. But if a note is in controversy its date is material as establishing its identity.
4. "The evidence must be the best of which the case is susceptible." Thus, in case of a written instrument the best evidence is the instrument itself; the next best, a copy of it; the next, oral statement of its contents. And a copy will not be accepted if the original can be produced.
5. The burden of proof lies on the affirmative. In civil cases the party affirming is usually the plaintiff. In criminal cases it is the state. Harmonizing with this principle is the constitutional provision that in criminal cases the accused shall not be required to give evidence against himself.
These are the principal rules of evidence, but they have many applications. Learned volumes have been written elaborating them.
Grand Jury.—A grand jury may be defined as a body of men returned at stated periods from the citizens of the county, before a court of competent jurisdiction, chosen by lot, and sworn to inquire of public offenses committed or triable in the county.
The number of grand jurors was formerly twenty-three. By statute many of the states have fixed upon a smaller number, Oregon having only seven. A common number is fifteen. Some states have no grand jury. In some others the grand jury is summoned only when requested by the court.
The United States constitution and most of the State constitutions declare that no person shall be held to answer for a criminal offense, except a minor one, "unless on the presentment or indictment of a grand jury." This is to save people from the vexation and expense of arrest and trial unless there is reasonable presumption of their guilt. On the other hand, a grand jury should aid in bringing to justice persons who indulge in practices subversive of public peace, but which individuals are disinclined to prosecute, such as gambling. Incidentally the grand jury examines into the condition of the county jail and poor-house.
The mode of selecting grand jurors is in general the same in all the states. The steps are three: first, the careful preparation of a list of persons in the county qualified to serve; second, the selection, by lot, from this list of the number of persons needed; third, the summoning of the persons so chosen. The number of persons in the first list is from two to three times the number of jurors. The preparation of the list is in some states entrusted to the county board; in others, to jury commissioners; in others, to the local boards. The names are reported to the clerk of the court, who in the presence of witnesses, makes the selection by lot. The summoning is done by the sheriff.
On the first day of the term, the court appoints one of the jurors foreman. The jury is then sworn, and, after being charged by the court, retires to a private room and proceeds to the performance of its duty.
The deliberations of the grand jury are conducted in secret. It may, however, summon and examine witnesses, [Footnote: Witnesses for the accused are not usually examined by the grand jury.] and may have the advice of the court or of the county attorney.
The fact that a crime has been committed within the county may be brought to the notice of the grand jury by any member thereof or by any other person. If upon examination there seems to be reason