George Harlan died intestate, in the County of Santa Clara, in July, 1850. Immediately before and at the tune of his death, Harlan resided at the Mission of San José, which was at that time in the County of Santa Clara. In March, 1853, by an Act of the Legislature, the County of Alameda was formed out of territory taken in part from the County of Santa Clara. The territory so taken from the County of Santa Clara included the land on which said Harlan resided at the time of his death, and the place of said Harlan’s residence at that time, has ever since been, and it now is in the County of Alameda.

In June, 1863, the appellant, Charles Halsey, filed his petition in the Probate Court of Santa Clara County, stating, among other things necessary to entitle him to letters of administration, that Harlan died intestate in Santa Clara County, leaving real estate of great value in the County of San Francisco, that said Harlan at the time of his death was a resident of Santa Clara Comity, and concluding with a prayer that letters of administration be issued to him. This application was opposed by sundry parties claiming to be interested in the estates, as heirs or otherwise, on the ground, among others, that the Probate Court of Santa Clara County had no jurisdiction, for the reason that the place of residence of Harlan at the time of his death was no longer in the County of Santa Clara, but at the time of the said application was a part of the County of Alameda. The petition was denied on that ground alone, and the only question presented by the record is, “ Whether the Probate Court of the County of Santa Clara has jurisdiction of the estate of the said George Harlan, deceased, and can grant letters of administration upon said estate; or whether such jurisdiction is in the County of Alameda?”

The Act of 1850 relating to this subject provides that “ Let *188 ters testamentary or of administration shall be granted: 1. In the county of which the deceased was a resident at or immediately previous to his death, in whatever place his death may have happened.” The same provision is contained in the Act now in force.

The Mission of San José continued to form a part of Santa Clara County for three years after the' death of Harlan, and during all that time the only Court that could take jurisdiction of the administration of his estate was the Probate Court of Santa Clara County. That county still exists, and its county government has been continued to the present time. Its territorial limits have been somewhat curtailed, it is true, but its legal identity is the same. The change in boundaries cannot affect the fact that Harlan died in Santa Clara County, and this is one of the jurisdictional facts prescribed by the statute. All the jurisdictional facts, then, once existed, and the Probate Court of that county, upon a proper presentation of those facts, would, at one time, have been authorized to take and it in fact did take cognizance of the administration of the estate. Unless something has occurred to oust that tribunal of its right, it still exists, and we find nothing in the law withdrawing the jurisdiction from the Probate Court of Santa Clara County, unless the mere fact that the tract of land on which Harlan -resided at the time of his death has been taken from the County of Santa Clara, and in connection with other territory erected into the new County of Alameda, works such a result. We do not see that this result necessarily follows. There is, in the nature of things, no necessary connection between the land and the jurisdiction. It was found convenient to establish some uniform test of jurisdiction, and the Legislature adopted the arbitrary one of making the residence of the party at the time of his death that test, although his property might be, as in this instance, to a great extent, in some other locality.

When a party dies, the jurisdiction to administer upon his estate, under the provisions of the Act, becomes fixed in the county of the residence of the decedent. The legal identity of the county may continue, notwithstanding its territorial limits *189 may be modified. In contemplation of law, the legal entity known as the County of Santa Clara is the same with that which existed prior to 1853, at the time when the situs of the jurisdiction upon the estate of Harlan became fixed. In organizing the new County of Alameda no provision was made for transferring to the new county the jurisdiction to administer the estates of those who had already died in the County of Santa Clara. Provision is made for transferring certain records and certain legal proceedings of a local character from the County of Santa Clara to the County of Alameda. (Laws of 1853, p. 59, Secs. 16, 17.) It is insisted that this case is embraced in the term “ subject matter ” used in section sixteen. We think not. If the estate is the “ subject matter” of this proceeding, then all of the estate now remaining, and consequently the subject matter, appears to be situate in the County of San Francisco, and not in either of the Counties of Santa Clara or Alameda. The residence of the party at the time of his death, and not the situation of the estate, is the test of jurisdiction.

The provisions of the Act cited clearly do not embrace cases like the one under consideration. Had the Legislature intended to include such cases, they doubtless would have made provision for them. Ho such provision was made, and the presumption, from the fact of this omission, if any presumption can be indulged, is that the Legislatme did not intend to deprive the Probate Court of Santa Clara County of jurisdiction in those cases in which the right to take jurisdiction had already become fixed in the County of Santa Clara, by the death of a party while a resident of that county. In considering the question in the light of authority, we have found but one case directly in point. In the matter of Bugbee v. The Surrogate of Yates County, 2 Cow. 471 , the precise question arose under a similar statutory provision. A. Bug-bee died while a resident of the Town of Benton, in the County of Ontario. Subsequent to his death, the Town of Benton, in connection with several other towns, was erected into the County of Yates. An application was made to the Surrogate of the new County of Yates for letters of adminis *190 tration. The Surrogate, having doubts as to Ms jurisdiction, refused the letters, and the parties interested applied to the Supreme Court for a mandamus to compel him to act. The Supreme Court held that “the Surrogate of Yates County had no jurisdiction;” that “Alva Bugbee was, at the time of Ms death, an inhabitant of the County of Ontario, and granting letters of administration pertained to the Surrogate of the latter county.”

For the reasons stated, and upon the authority of the case cited, we hold that the Probate Court of Santa Clara County has jurisdiction, without reference to the question as to the validity of the proceedings taken in the matter of Harlan’s estate in that county prior to the year 1853.

This view makes it unnecessary to consider the jooints made upon those proceedings, supposed to bear upon the present question.

The judgment is reversed and the cause remanded for further proceedings.

Mr. Justice Rhodes, having been of counsel for petitioner, did not sit in the case.