55. The Commission to Take Deposition.

[Title.]

The People of the State of

To the Hon.

Judge [or, Justice, Chancellor, Justice

of the Peace, Notary Public, or Mayor] of the, of the County of..........., of the State of ......, with office located in the City of ......., Greeting:

Know ye: It appears that..... .................................., one of the attesting witnesses to the last will and testament of ............, deceased, late of the said county of, the probate of which is now pending in the above entitled matter in the above named court, resides at within your said county of ............. ; that and within your said

and at

............

who reside at county, as well as the said attesting witness are material witnesses in the hearing of the petition for the probate of said will; and that the personal attendance of said witnesses cannot be procured in this court first above named at the time set therein for said hearing;

Now, therefore, by virtue of an order made and entered by the judge of the above named court in the above entitled matter, on the day of .... ................................, 19...., a commission with the will annexed was directed to issue herein to you to take the depositions of the said witnesses in said cause, you are hereby commissioned, authorized and empowered to require said witnesses to come before you at such time and place in your said county as you may designate, and to take the depositions of said witnesses on oath or affirmation, and to take and certify, in due form of law, proof of the attestation to said will, which will is hereto attached, together with the interrogatories and cross-interrogatories to be answered by said witnesses, respectively. The depositions, when taken, together with the will, the interrogatories, cross-interrogatories, and this commission, you will certify and return to our said court with the least possible delay.

Given under my hand and the seal of my office, by order of the first above named court, this............ day of............, 19..... [Signature, title, and seal of officer.] [Attach original will, interrogatories and cross-interroga

tories.]

56. Interrogatories Attached to Commission to Take Depositions. Interrogatories to the depositions of witnesses taken to be used in a matter or proceeding pending in the court with

in and for the ............ in the County of........... in the State of ............, in the matter of the estate of...., deceased, wherein the last will and testament of the said deceased, ............, is sought to be probated, submitted in connection with the attached commission:

1. Question. What is your full name?

2. Question. What was your age on your last birthday? 3. Question. Where is your present established residence, as to post-office, county and State?

4. Question. I now present to you the instrument referred to in the attached commission, which purports to be the last will and testament of one, deceased, a writing bearing the date of the day of............, 19...., bearing the name of ............ as testator and the names of.... ...... and ............ as attesting witnesses, and bearing an indorsement which indicates the same to have been filed in said court on the day of............, 19...., and I ask whether you were one of the attesting witnesses to said will.

5. Question. You may state, generally, what you know relative to the time, place and manner of the execution of said will, including who were the attesting witnesses, what the testator's age then was, the condition of his mind, and the influences under which he acted in the execution of the will?

[If the purpose of the evidence is to prove the death of the testator, or the description and location of his property, or the manner of the delivery of the will to parties offering the same for probate, or the next of kin and heirs at law of decedent, or facts necessary to support the testimony of witnesses to signatures of testator or subscribing witness, or to prove the sanity of the testator, questions may be framed to meet the particular facts to be proven, as outlined in forms 39 to 45, inclusive.] 57. Cross-interrogatories Attached to Commission to Take Deposition on Probate of Will.

Cross-interrogatories to the depositions of witnesses taken to be used in a matter or proceeding pending in the ............ court within and for the, in the County of in the State of ............, in the matter of the estate of ............, deceased, wherein the last will and testament of the said ............ is sought to be probated, submitted in connection with the attached commission:

Question 1.

[Formulate from No. 43.]

58. Answers to Interrogatories Attached to Commission to Take Deposition.

State of..., County of ............, ss:

.......

being duly sworn, on h.... oath, deposeth and saith, in answer to the interrogatories propounded in the attached commission:

Answer 1.

[Formulate the answers from the use of Nos. 39 to 45, inclusive, according to the nature of the evidence to be given by the particular witness.]

59. Answers to Cross-interrogatories Attached to Commission to Take Deposition.

[Formulate from No. 58.]

60. Certificate to Deposition.

I, ............, a notary public [or, a justice of the peace, mayor or ...... judge of..... .............., etc.] within and for the County of in the State of .............., do hereby certify that the above named ........ and.... ....., the witnesses whose names are, respectively, subscribed to the within depositions attached to the within commission, were by me first duly sworn [or, affirmed] to testify the truth, the whole truth and nothing but the truth in the matter of the estate of ............., deceased, wherein the last will and testament of the said ........... is sought to be probated in the court of the County of ............ in the State of and that the depositions by them subscribed, respectively, in answer to the attached and foregoing interrogatories and crossinterrogatories were reduced to writing [or, taken in shorthand and transcribed] by a person who was competent and disinterested in said probate matter, last said person having been duly sworn to truly and correctly take and transcribe the same, and said depositions were subscribed by said witnesses, respectively, in my presence, and the same were taken by me on the town [or, city] of............ in the County of........... in the State of ............, on the ............ day of............, 19...., at the office of located at..... between the hours of o'clock, A. M. and ..... .... o'clock, P. M. of last said day, all of which was done by virtue of and in conformity with the attached commission. I further certify that I am not attorney or a relative to any party interested in said probate matter, nor am I otherwise either interested in said matter or any event or condition arising therefrom.

this

Witness my hand and the seal of my office at....

.... day of..... 19.....

[Signature, title, and seal of officer.] [Attach to commission, interrogatories, cross-interrogatories, and answers.]

61. Indorsement on Envelope Inclosing Depositions, for Mailing.

Depositions taken by the under-)

signed, a.................., at ................................, in

the matter of the estate of To the Clerk of the

and ............, taken by ............, at .... day of............, 19...., and filed herein on the 19...., upon the following grounds, to wit:

First:

Question No............. in the deposition of the said ............ is objected to as leading, suggestive, indefinite and argumentative: in the deposition of the said.......

Question No. is objected to as not a proper hypothetical question; as assuming a state of facts not shown, and not within the issues of this case: Question No............. in the deposition of the said ...... is objected to for the reason that no proper foundation has been laid; the witness has not shown himself qualified, and the question calls for a conclusion.

....

The answer to cross-interrogatory No. ............ is objected to in that it is not responsive to the question, it is argumentative, [Etc.].

Second:

(a). The notice for the taking of such deposition is indefinite and insufficient as to the place of taking:

(b). Said notice was not served on terested parties of record in said probate required by law:

........ and ...... ............, incase, in the manner

(c). Sufficient time as required by law did not elapse between the alleged service of said notice on the said ....

the date of taking the depositions :

and

(d). The certificate attached to said depositions as a whole

is insufficient and defective:

(e). Said depositions were not filed in this court day.... prior to the day of trial:

(f). [Etc., etc.]

Wherefore, the undersigned,, prays that the questions and answers objected to under the particular specifications above be stricken from the record, and be given no force or ef fect whatsoever. [Or, if the objections are to the depositions as a whole, ask that the depositions be suppressed.]

[Names of objecting parties.]

[Signature of attorney for objecting parties.]

63. Verified Statement of Facts, on Offer to Read Deposition in Evidence.

[Title.]

being duly sworn, on his oath says:

I am a resident of the County of

in the State of

............., in this, to taken by

I was ...... years of age on my last birthday. I am interested in the estate of the said decedent, .... wit, ....... In relation to the deposition of ... and filed herein on the ............ day of ............, 19...., the personal attendance of said witness before this court cannot at this time be procured for the following reasons, to wit:

Said witness does not reside in this county of...; said witness is now absent from this county; and, with due diligence, your affiant is unable to procure his personal attendance herein. at this time.

[Or, said witness, by reason of his extreme age (infirmity, or imprisonment in the ......... ................. at................................), is unable to personally attend in this court at this time. Etc.]

Wherefore said affiant, by his attorney undersigned, now offers to make proof in open court of the facts above stated, unless such additional proof be waived, presents the deposition herein mentioned, and asks permission of the court to have the same read in evidence in said pending matter as the testimony of the said

[Signature of affiant.]

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