Johnson v. Beazley. this subject. In this perplexing conflict of authority, we can but weigh the authorities and arguments, and incline, as in our judgment, they preponderate. The 12th section of article 5 of the Constitution of this State, in force when the probate court of Crawford county was established, was as follows: "Inferior tribunals shall be established in each county for the transaction of all county business, for appointing guardians, for granting letters testamentary and of administration, and for settling the accounts of executors, administrators and guardians." By the act of the General Assembly creating this court (Sess. Acts 1855, page 499), exclusive original jurisdiction was conferred upon it, in all cases relative to the probate of last wills and testaments, granting letters testamentary and of administration, settling and allowing accounts of executors and administrators, and determining all disputes and controversies whatever, respecting wills and the right of executorship and administration. By the fifth section, it was made a court of record, and true and faithful records of its proceedings were required to be kept. By section 3, article 1 of the administration law, it is provided that "letters testamentary and of administration shall be granted in the county in which the mansion or place of abode of the deceased is situated. If he had no mansion house and be posseseed of lands, letters shall be granted in the county in which the land or the greater part thereof lies, etc." The assumption upon which is based all the argument for holding the record as a nullity is, that the county and probate courts of this State are of inferior and limited jurisdiction, although expressly made courts of record by the statute, with exclusive original jurisdiction over the subjects committed to them, and although the Constitution of the State provided for their creation, and, in general terms, defined the jurisdiction that was to be conferred upon them. It is unnecessary to refer to cases decided by this or other courts, in regard to special jurisdiction confided by statute to justices of the peace or to Circuit Courts, wherein those courts had no jurisdiction of the subject, except as conferred and restricted by the statute. In such cases it is well settled in this State, that the jurisdiction of the court must appear in the record, and that, if it do not so appear, the judgment may be attacked in collateral proceedings. The case of Lacey v. Williams, 27 Mo. 280. was one in which a guardian was appointed for an infant not residing in the county where the appointment was made, but owning laud therein, and it was a direct proceeding to remove the guardian so appointed. It is clear that in that case the court had no such power as it exercised, but the main question in this was not raised in that case, and it is no authority for the position here taken by the plaintiffs in error. It is not intimated in the opinion of the court that the action of a probate court upon a subject-matter confided to it occupies any different position from that of the Circuit Court upon a subject-matter over which it has general jurisdiction. That the probate court of Crawford county, in the case we are considering, erred in the appointment of an administrator of the estate of Higginbotham, who resided and had his mansion in the county of Dent, although he owned land in the county of Crawford, is clear; but the appointment having been made, the presumption is that the matter has been considered and determined by the court, and until the contrary appears in a direct proceeding in that court, or some higher court to which an appeal lies, the record of the appointment will be conclusive, in all collateral proceedings. The jurisdiction of probate courts is not, like that of justices of the peace, confined to special cases in which the jurisdiction must appear, but their jurisdiction pertaining to wills and administrators is general. The subjects of their jurisdiction are clearly defined, and any action of theirs outside of such subjects would be of no force or validity, and the same may be said of the Circuit Court; but their action, on subjects exclusively and originally confined to them, is entitled to the same weight as that of any other court of record. It is insisted that the appointment of H. C. Scott as administrator of Higginbotham's estate is to be treated as a nullity, because there is no record showing the fact that the deceased resided at the date of his death in Crawford county, in other words, that the record must show facts which authorized the action of the probate court; not merely that an administrator was appointed, but that all the requirements of the statute had been duly complied with. The statute provides that if the deceased had no mansion house, or place of abode at the time of the death, but owned land, letters should be granted in the county in which the greater part of the land lies; and the argument made here would be equally good in the case of an appointment of an administrator of one deceased who had no domicile, if the record did not expressly show that the greater part of the lands were in the county in which the appointment was made Johnson v. Beazley. - and yet this would not be seriously insisted upon. In the case at bar, if the position taken by the plaintiffs in error is correct, it was wholly unnecessary to prove that Higginbotham resided, and had his mansion house in Dent county; for the argument is that, unless the record shows, either that the deceased resided and had his mansion house in Crawford county, or had no residence or mansion house, but owned lands, and that the greater part of said lands were in Crawford county, the appointment is to be treated as a nullity. The case of Schell v. Leland, 45 Mo. 294, is not an authority for the doctrine contended for by plaintiffs in error. The Kansas city Court of Common Pleas was by the terms of the act creating it, expressly limited on the subject-matter of mechanics' liens to the township in which it was located, and it was held that, when in that court a lien was attempted to be enforced, the record must show that the property against which the lien was sought to be enforced, was in Kaw township. It was a local court confined in its jurisdiction to Kaw township, an inconsiderable portion, geographically, of the county of Jackson. Such a conrt is not to be treated as occupying the same position as probate courts, which by the statute "have exclusive original jurisdiction in all cases relative to the probate of last wills and testaments, the granting letters testamentary and of administration, etc.," and whose jurisdiction is co-extensive with the respective counties for which they are created. The case of Bryan v. Mundy, 14 Mo. 459, originated on a motion in the probate court, two years after a demand was allowed and classified by that court, to set it aside, on the ground that the administrator had no notice that such demand would be presented for allowance. The record did not show that he had notice and there was evidence tending to show that, in fact, he had no notice. That it will be perceived was a direct proceeding to set aside the judgment, between the original parties to the suit, no rights of third persons intervening; and although the doctrine of that case, as Judge SHERWOOD observed in Brooks v. Duckworth's Adm'r, "has been very often doubted," yet, admitting it to be correct, it comes far short of sustaining the doctrine here insisted upon. A careful analysis of the case of Valle v. Fleming, 19 Mo. 454, we think, will show that it does not conflict with the doctrine we have endeavored to maintain. Judge SCOTT says, in that case, "that the County Courts have no other jurisdiction than that which is specifically conferred on them by statute. They have no common Johnson v. Beazley. law jurisdiction, nor can they be said to be courts of general jurisdiction, in whose favor, by the common law, the liberal intendments are indulged, which are extended to courts of that character. But the great mischief which experience has shown arises from avoiding sales made under the authority of tribunals having jurisdiction of the subject, have induced courts to extend an enlarged liberality of construction to proceedings instituted for such purpose, with a view to uphold them. As to these proceedings the presumption extended to courts of general jurisdiction is indulged." In that case the record affirmatively showed that no notice had been given, and Judge SCOTT says, "How then can a notice be presumed when the record on its face shows that it was impossible, in the nature of things, that it could have been given." The same distinguished judge said, in Riley's Adm'r v. McCord's Adm'r, 24 Mo. 267,"an illegality in the grant of letters of administration cannot be taken advantage of in a collateral proceeding. They must be regarded as valid until they are regularly revoked." In Strouse v. Drennan, 41 Mo. 289, this court held a different doctrine. It is there said that "our county and probate courts are not courts of general jurisdiction, according to the common-law meaning of the term, in which such liberal intendments are indulged, for they have only limited jurisdiction which is especially conferred on them by statute." To the same effect is Gibson v. Vaughn, Adm'r, etc., 61 Mo. 418. We think, after a careful review of the authorities, that those are not in harmony with the best considered cases in this country, and should be overruled. The case of Brooks v. Duckworth, 59 Mo. 49, is an express decision of this court on the point under consideration. It was there held that on a presentation of a demand to the county court, for allowance against an estate, the jurisdiction of that court to pass on its validity at once arose, and the conclusion of the court upon the evidence, and all other matters to be adjudicated, could not be attacked collaterally. In Kemp's Lessee v. Kennedy, 5 Cranch, 173, MARSHALL, C. J., said: "All courts from which an appeal lies are inferior courts, in relation to the appellate court before which their judgment may be carried, but they are not, therefore, inferior courts in the technical sense of those words. They apply to courts of special and limited jurisdiction, which are erected on such principles that their judgments, taken alone, are entirely disregarded, and the proceedings must show their jurisdiction. The courts of the United VOL. XXVII-36 Johnson v. Beazley. States are all of limited jurisdiction, and their proceedings are erroneous if the jurisdiction be not shown upon them. Judgments rendered in such cases may certainly be reversed, but this court is not prepared to say that they are absolute nullities.” In Griffith v. Frazier, 8 Cranch, 9, MARSHALL, C. J., observed: "To give the ordinary jurisdiction, a case in which, by law, letters of administration may issue, must be brought before him. In the common case of intestacy it is clear that letters of administration must be granted to some person by the ordinary; and though they should be granted to one not entitled by law, still the act is binding until annulled by the competent authorities, because he had power to grant letters of administration in the case." To the same effect is the case of McNitt v. Turner, 16 Wall. 353. A statute of Illinois provided that "in all cases where the intestate shall have been a non-resident, or without a widow, next of kin, or creditors in this State, but having property within the State, administration shall be granted to the public administrator of the proper county, and to no other person. The probate justice of Adams county appointed Archibald Williams administrator of the estate of Samuel Spotts, deceased, and, as such administrator, he applied to the Circuit Court of said county, and procured an order to sell certain tracts of land of which said Spotts died seized. The proceedings of the probate court did not show that Williams was public administrator, nor did they show that there was no such officer in the county at the time. Justice SWAYNE, delivering the opinion of the court, said: "It does not appear that Williams was not the public administrator, and, if he were not, that there was any such officer for Adams county at that time. If there was not, the appointment of Williams was proper. Error must be shown. It is not to be inferred, except where the inference is inevitable. Every thing consistent with the record which would have warranted the appointment will be presumed to have existed, and to have been found and acted upon by the court. Acts done which presuppose the existence of other acts to make them legally operative, are presumptive proof of the latter." To the same effect are the cases of Grignon v. Astor, 2 How. 319; Kennedy et al. v. Georgia St. Bank, 8 id. 586, and McCormick v. Sullivant, 10 Wheat. 199. Propst v. Meadows, 13 Ill. 157, was the case of an allowance of a demand against an estate, which it was sought to avoid on the ground that the executor had no notice of the proceeding. CATON, |