KFLCC Kingdom Law 2nd Ed.

PROBABLE

946

PROBATIS EXTREMIS

to designate theproof of his claim made by a non-resident plaintiff (when the same is on book-account, promissory note, etc.) who swears to thecorrectness and justness of the same, and that it is due, before a notary or other officer in his own state; also of the copy or statement of such claim filed in court, with the jurat of such notary attached. —Probate bond. One required by law to be given to the probate court or judge, as inciden tal to proceedings in such courts, such as the bonds of executors, administrators, and guard ians. See Thomas v. White, 12 Mass. 367.— Probate code. The body or system of law re lating to all matters of which probate courts have jurisdiction. Johnson v. Harrison, 47 Minn. 575, 50 N. W. 923, 28 Am. St. Rep. 382. —Probate court. See COURT OF PEOBATE. —Probate, divorce, and admiralty divi sion. That division of the English high court of justice which exercises jurisdiction in mat ters formerly within the exclusive cognizance of the court of probate, the court for divorce and matrimonial causes, and the high court of admiralty. (Judicature Act 1873, § 34.) It consists of two judges, one of whom is called the "President." The existing judges are the judge of the old probate and divorce courts, who is president of the division, and the judge of the old admiralty court, and of a number of registrars. Sweet.— Probate duty. A tax laid by government on every will admitted to probate, and payable out of the decedent's es tate.— Probate homestead. See HOMESTEAD. —Probate judge. The judge of a court of probate. Lat Proof; more particu larly direct, as distinguished from indirect or circumstantial evidence. — Probatio mortua. Dead proof; that is proof by inanimate objects, such as deeds or other written evidence.— Probatio plena. In the civil law. Full proof; proof by two wit nesses, or a public instrument Hallifax, Civil Law, b. 3, c. 9, no. 25; 3 Bl. Comm. 370.— Pro batio semi-plena. In the civil law. Half full proof; half-proof. Proof by one witness, or a private instrument. Hallifax, Civil Law, b. 3, c, 9, no. 25; 3 Bl. Comm. 370.— Probatio viva. Living proof; that is, proof by the mouth of living witnesses. PROBATION. The act of proving; evi dence ; proof. Also trial; test; the time of novitiate. Used in the latter sense in the monastic orders. In modern criminal administration, allow ing a person convicted of some minor of fense (particularly juvenile offenders) to go at large, under a suspension of sentence, dur ing good behavior, and generally under the supervision or guardianship of a "probation officer." PROBATIONER. One who is upon trial. A convicted offender who is allowed to go at large, under suspension of sentence, during good behavior. Probationes debent esse evidentes, scil. perspicuse et faciles intelligi. Co. Litt. 283. Proofs ought to be evident, to-wit, per spicuous and easily understood. Probatis extremis, prsesumuntur me dia. The extremes being proved, the inter- PROBATIO.

such facts and circumstances as would excite the belief in a reasonable mind, acting on the facts within the knowledge of the prose cutor, that tiie person charged was guilty of the crime .for which he was prosecuted. Wheel er v. Nesbitt. 24 How. 544, 16 L. Ed. 765.— Probable evidence. See EVIDENCE.— Prob able reasoning. In the law of evidence. Reasoning founded on the probability of the fact or proposition sought to be proved or shown; reasoning in which the mind exercises a discretion in deducing a conclusion from prem ises. Burrill. who sues. Inst. 2, 20, 4. In other words, the burden of proof of a proposition is upon him who advances it affirmatively. PBOBARE. In Saxon law. To claim a thing as one's own. Jacob. In modern law language. To make proof, as in the term "onus probandi," the burden or duty of making proof. PROBATE. The act or process of prov ing a will. The proof before an ordinary, surrogate, register, or other duly authorized person that a document produced before him for official recognition and registration, and alleged to be the last will and testament of a certain deceased person, is such in reality. The copy of the will, made out in parch ment or due form, under the seal of the or dinary or court of probate, and usually de livered to the executor or administrator of the deceased, together with a certificate of the will's having been proved, is also com monly called the "probate." In the canon law, "probate" consisted of probatio, the proof of the will by the execu tor, and approbatio, theapprobation given by the ecclesiastical judge to the proof. 4 Reeve, Eng. Law, 77. And see In re Spiegelhalter's Will, 1 Pennewill (Del.) 5, 39 Atl. 465; Mc Cay v. Clayton, 119 Pq. 133, 12 Atl. 860; Pettit v. Black, 13 Neb.142,12 N. W. 841; Reno v. McCully, 65 Iowa, 629, 22N. W. 902; Appeal of Dawley, 16 R. I. 694, 19 Atl. 248. -Common and solemn form of probate. In English law, there are two kinds of pro bate, namely, probate in common form, and probate in solemn form. Probate in common form is granted in the registry, without any formal procedure in court, upon an ea> parte application made by the executor. Probate in solemn form is in the nature of a final de cree pronounced in open court, all parties in terested having been duly cited. The difference between the effect of probate in common form and probate in solemn form is that probate in common form is revocable, whereas probate in solemn form is irrevocable, as against all per sons who have been cited to see the proceed ings, or who can be proved to have been privy to those proceedings, except in the case where a will of subsequent date is discovered, in which case probate of an earlier will, though granted in solemn form, would be revoked. Coote, Prob. Pr. (5th Ed.) 237-239; Mozley & Whit ley. And see Luther v. Luther, 122 111. 558, 13 N. E. 166. The term is used, particularly in Pennsyl vania, but not in a strictly technical sense, Proband! necessitas incnmbit illi qui agit. The necessity of proving lies with him