43 Mich. L. Rev. 675 (1944-1945)
Administration of a Decedent's Estate As a Proceeding in Rem

handle is hein.journals/mlr43 and id is 689 raw text is: ADMINISTRATION OF ESTATES

Lewis M. Simes t
F OR over a century American courts and text writers have referred
to the administration of a decedent's estate as a proceeding in rem.
Indeed, it has recently been asserted that a probate proceeding is
universally recognized as a proceeding in rem. 1 But more cautious
persons have been content to suggest that it is at least quasi in rem,'
or have carefullly skirted the fog which is wont to envelop this area
of the law and given it silent treatment. Thus, the American Law
Institute Restatement of the Law of Jidgments (which purports to
include the law of probate decrees') gives examples of judgments in
rem,4 and mentions in that connection judgments of a court of ad-
miralty, judgments under land registration statutes and proceedings for
forfeiture of things used in violation of law, but does not refer to pro-
bate decrees. At a later point, after positively asserting that an ad-
miralty proceeding to enforce a maritime lien on a vessel, or a proceed-
ing for a registration of tide to land is in rem, it continues with this
guarded observation:' So, also, probate courts, acting 'within their
jurisdiction, can give judgments in rem, binding on all the world.
In view of the uncertainty which still exists, this paper proposes to
consider just what is meant by the proposition that the administration
of a decedent's estate is a proceeding in rem. Since the Restatement of
* The writer is glad to acknowledge his indebtedness to Miss Elizabeth Durfee,
of the research staff of the University of Michigan Law School, for her valuable as-
sistance in the research incident to the preparation of this manuscript.
t Professor of law, University of Michigan Law School.-Ed.
1 Hopkins, The Extraterritorial Effect of Probate 'Decrees, 53 YALE L. J.
221 at 225 (1944). A similar statement is made in Carey, A Suggested Fundamental
Basis of Jurisdiction with Special Emphasis on Judicial Proceedings Affecting Dece-
dents' Estates, 24 ILL. L. REv. 44. at 49 (1929).
2 The administration of an estate under the probate jurisdiction of a court, which
involves the appointment of an administrator and culminates in a final decree of dis-
tribution, is a proceeding in rem, or, as said by some, quasi in rem. Carter v. Frahm, 3 I
S.D. 379 at 392, 141 N.W. 370 (1913). And see Campbell v. Drais, 125 Cal. 253 at
258, 57 P. 994 (1899).
' The Restatement of this Subject deals also with the determination of the court
in other judicial proceedings, such as proceedings in admiralty, or in probate, or for
divorce. JUDGMENTS RESTATEMENT 3 (1942).

1945 ]

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