(dissenting). I concur entirely in the decision of the court with regard to the admission in evidence of the clause in the will of Joseph Olmstead in which he expresses himself, at least substantially, as not owing the *124appellant. Such a declaration in a will, is clearly a written memorandum within the meaning of the statute, and one of more than usual formality and solemnity. It clearly should go to the jury for them to give it such weight as in view of ■its character and the circumstances they may think it deserves.
But I can not yield my assent to the decision of the court upon the principal point in the case, nor am I able to perceive the force of the reasoning by which, in the opinion of my brethren, it is sustained.
The conclusion, in which we all concur, that the matter pertaining to the jurisdiction of the court of probate was not •a legitimate and proper reason for the appeal, should, I think, have been an end of the case. I regard it as a sufficient and complete vindication of the ruling of the court below. That matter was stated as a reason of appeal. There was no attempt to use it in any other way or for any other purpose. There was no plea to the jurisdiction and no motion to erase from the docket. On the contrary the pleadings show, what was true in fact, that the appellant attempted to take advantage of it on the trial of the cause upon its merits. That was irregular, unlawyerlike and improper. When rejected as a reason of appeal it was rejected for all purposes for which it was offered. The court was not bound to inquire whether advantage might not have been taken of it in some other way. It was sufficient to meet, it as it was presented. It is conceded that the pleadings lay no foundation for this evidence. The logical conclusion is that it was properly rejected. Whether admissible or not under a plea to the jurisdiction, or as a suggestion to the court of a want of jurisdiction, is a question which, as I can not but regard it, was not before the court, and in respect to which the court therefore could have committed no error.
But with all deference to my associates, for whose opinions I entertain the highest respect, I submit that under no form of pleading, and for no pui-pose whatever on this appeal, was this evidence admissible.
There are two ways of removing a case from the docket for want of jurisdiction. • 1. By motion, oral or written. 2. By *125a plea to the jurisdiction. The first is proper only when the want of jurisdiction is apparent on the record. The second must be resorted to in all cases where the matter showing the want of jurisdiction is dehors the record. Such is the case before us. Before the question can be raised the facts must be stated in a plea; and when so stated are traversable; and when traversed, or an issue is formed in any other way, then, and not till then, can the court properly proceed to hear the evidence and try the issue. Now a plea to'the jurisdiction is a dilatory plea, and precedes in point of time a plea to the merits. The appellant, if he knew the facts—and there is no pretense that he did not, for the deceased was his own father —was bound to interpose this objection at the time proceedings were first instituted in the court of probate, or within a reasonable time afterwards. He not only omitted to do so, but presented his claim to the commissioners and took his chances of a favorable judgment by that tribunal. Failing there, he appealed to the Superior Court, and before that court wre have the unusual spectacle of a party attempting to establish his claim in a court of justice, and at the same time, and upon the same trial, offering evidence to prove that the court has no jurisdiction of the cause. I cannot encourage or countenance such a proceeding—much less aid in giving it a judicial sanction. The jurisdiction of the court depended upon the domicil of the deceased at the time of his death. I think that the appellant, by the course he pursued, admitted the jurisdiction of the court, and waived the objection.
The cases cited from Massachusetts, and which seem to establish a different doctrine, are entitled to but little weight. Their authority is questioned by the editor in a note to Cutts and others v. Haskins, 9 Mass., 547, and now by statute it is enacted that the jurisdiction assumed in any case by the judge of probate, so far as it depends on the place of residence of any person, shall not be contested in any suit or proceeding whatever, except in an appeal from the probate court in the original case, or when the want of jurisdiction appears on the same record.
But if I am wrong in this, and the doctrine of waiver doss *126not apply to the case, then the appellant is not aggrieved by the ruling of the court below, because he may even now raise the question in the probate court, the only tribunal in my judgment which has original jurisdiction of the question. To such a proceeding the decision of the Superior Court is no bar. Therefore a new trial will be of no advantage to him, and a refusal to grant a new trial will not prejudice him.
But the decision in this case I regard as objectionable in other respects. The Superior Court is an appellate tribunal. Its powers and duties in this case are measured by the powers and duties of the court below. Those powers and duties aro clearly and distinctly defined by statute. Commissioners are “to receive and decide upon the claims of the creditors of said estate.” Gen. Statutes, Rev. of 1866, p. 417, sec. 67. The two following sections provide that they shall act upon the claims exhibited to them, and allow such as were exhibited in proper time, and are found to be justly and lawfully due; and their report to the court of probate must contain a list of all the claims exhibited to them, particularly specifying those which they have allowed and those which they have disallowed. Sec. 145, p. 440, provides that “whenever any person shall be aggrieved by the doings of the commissioners in alloioing or rejecting a claim upon an insolvent estate, &c.,” such person may appeal to the Superior Court.
It will not be claimed that there can be found in the statute the slightest intimation that commissioners have any power to hear and determine the question whether the court of probate has jurisdiction of the settlement of the estate in which they are called upon to act; nor, I am sure, can any language be found which can be so construed as to give them that power. This ought, I think, to be conclusive in respect to a statutory tribunal of special and limited powers.
The argument derived from the extreme cases supposed docs not meet the question. I am not under the necessity of claiming, and I do not claim, that, in the case supposed, it is the duty of the commissioners to go forward and pass upon the validity of the claims, notwithstanding the supposed dead man may appear alive before them, or his death may bo dis*127proved by tlie most overwhelming testimony. What I claim is that the commissioners have no official power to hear and determine whether the man whose estate is in settlement is dead or alive, or whether he resided in one probate district or another; and that the power to determine that question is in the court of probate alone. When a claim of that kind is made before commissioners their duty is plain—to postpone all action until the appropriate tribunal has settled that question.
It must be conceded that the court of probate has jurisdiction of the question. It cannot, I am sure, be successfully maintained that the commissioners have concurrent jurisdiction. No lawyer would venture to advise a client, who desired to ■ arrest the settlement of an estate in a court of probate which had no jurisdiction, to institute proceedings for that purpose before the commissioners, even if they could be induced to entertain such a proceeding. Application would be made in due form to the court of probate, where the question could be regularly and properly tried; and, until finally determined, all proceedings before the commissioners, or in the Superior Court on an appeal from the doings of commissioners, would be stayed.
The Superior Court, acting pro hac vice as commissioners, and in their stead, has no more power to determine this question than they had. It may indeed determine its own jurisdiction, and for that purpose will inspect the record, or make inquiry aliunde, to see that the appeal is properly taken; but, in my opinion, it cannot in this proceeding determine the jurisdiction of the court of probate; and for the additional reason that it has no power to control the action of that court. The action of the Superior Court in allowing or rejecting the claim will be transmitted to the court of probate, and that court must conform its action thereto. But if the Superior Court on this appeal should advise the court of probate that it has no jurisdiction of the settlement of this estate, and direct it to suspend proceedings, it would be, it seems to me, a usurpation of jurisdiction as manifest and flagrant as the usurpation of the court of probate would have been if all that *128is alleged in the thii’d reason of appeal be strictly true; and I do not see why that court might not properly disregard such an order as coram non judice, and, with perfect propriety, proceed and complete the settlement of the estate. It has before it the report of the commissioners. Their doings in allowing or rejecting all claims in respect to which no appeal was taken, are unaffected by the appeal. Whether their judgment on the claims which are the subject of this appeal is or is not vacated, is perhaps an open question. Appeals from probate, unlike appeals from the judgments of justices of the -peace, do not vacate the judgments appealed from, but they remain in force until actually reversed by the Superior Court. The judgment of the commissioners, in rejecting the appellant’s claim, not being reversed, and the Superior Court refusing to take jurisdiction of the appeal, I think the court of probate would be justified in treating the original report as if it had not been appealed from.
There is danger that the doctrine enunciated in this case will lead to a conflict of jurisdiction. Suppose the Superior Court should find one way on this question, and the court of probate, which certainly has the power to determine its own jurisdiction, should find directly the contrary ; which finding is to prevail? If the judge of probate should feci constrained to follow his own convictions and disregard the order of the Superior Court,—regarding it, as he probably would, as an unauthorized interference with his duties,—by what process or by what authority can the Superior Court enforce its decree? No such authority is found in the statute, it is not found in any precedent, and I am not aware of any principle of the common law from which it can be derived. The Superior Court then is engaged in a futile and useless work, or it must resort to some power wholly unknown to the law to enforce its decree. A decision which results, or which may result, in such consequences, cannot, it seems to me, be a wise one.