he has a writ of summons issued in which all persons who would be entitled to share in the decedent's estate had he died intestate, and executors and beneficiaries under any former will, are made defendants, or some may be made defendants and others be cited to see the proceedings. Those cited to appear may take part either in favor of or against the plaintiff, or they may not appear.20 In all events they are bound by the decree except where the action is determined merely by reason of an agreement between the parties in which those cited do not concur.21 An executor, although he may theretofore have proved the will in common form, may of his own volition lodge the probate in the registry, 22 and then proceed to prove the will in solemn form. The proceedings are then the same as where the executor in the first instance proves the will in such manner. However, an executor who has proved the will in common form can not thereafter of his own initiative seek to revoke such probate, he having no interest as such executor which entitles him to institute such proceedings.23 § 1295. Procedure for Proof of Will in Solemn Form Upon Suit by Interested Party. The executor named in the will, or the one entitled to letters of administration where no executor has been 20 Kennaway v. Kennaway, L. R. 1 Pro. Div. 148. Under the Supreme Court of Judicature Act, 1873, statute of 36 & 37 Victoria, ch. 66, actions in the probate division are no longer commenced by citation, but are commenced by a writ or in other manner as may be prescribed by the rules of the court.-Moran v. Place, (1896) P. 214; Salter v. 21 Newell v. Weeks, 2 Phillim. 23 In re Chamberlain, L. R. 1 P. & D. 316. named or none is competent or willing to act, may be notified by any one entitled to succeed to a share in the estate of the decedent had he died intestate or whose interests are otherwise adversely affected by the will, to prove the will in solemn form. If no probate in common form has theretofore been had, this notice is given by the entry in the registry of a caveat to prevent probate or administration being granted unless the person entering the caveat be notified. The person making application for probate must warn the caveator and disclose his name and interest in the estate; and the caveator in his reply to the warning makes the same disclosures. 24 The one proposing the will thereupon has a writ of summons issued, in which the objecting parties are made defendants. All interested parties are cited to see the proceedings, issues are formed and the action is set for trial. Witnesses on all sides may be examined, cross-examined and re-examined. The jury returns its verdict, and the court decrees either for or against the will.25 Although the will has once been proved in common form, any interested party may at any time thereafter cite the executor or the administrator with the will annexed to bring the matter into court in order that such probate may be revoked. The objecting party files a caveat in the registry and causes a citation to be issued against the executor or administrator to bring the probate into court. Summons is issued against the executor 24 See statute of 20 & 21 Vict., & 21 Vict., ch. 77, provides for ch. 77, § 53, and rules regarding the examination of witnesses becontentious business and non- fore the judge in open court and contentious business under au- for the examination and crossthority of said statute. examination of parties and witnesses in all contentious matters. 25 Section 31 of the Court of Probate Act, 1857, statute of 20 or administrator as defendant, based upon a verified affidavit of the plaintiff setting forth his claim and also the names and interests of parties who should be cited to see the proceedings. The claim of the plaintiff may be that the will be proved in solemn form, for revocation of the former probate in common form, for the probate of a subsequent will and the revoking of the former probate, or for the grant of administration to a person claiming to be entitled thereto. Summons is served and proceedings are then had as where the executor is cited to prove the will in solemn form in the first instance.26 § 1296. American Practice as to Proving Will. The English practice of proving a will in common form, without citation to interested parties, is recognized in some jurisdictions in the United States.27 It can not be said, however, that there is any general rule in the United States regarding the proving of wills. It is customary when a will is offered for probate, that notice be given to interested parties. This notice is commonly required to be published for a specified time in some local newspaper of general circulation in the district where the 26 See citations, preceding note. A will to be proved in solemn form requires that all persons who would be interested in the estate of a decedent had he died intestate, such as his widow and next of kin, must be cited to be present at the time the will is presented for admission to probate. Witnesses may be called, sworn and examined upon all matters put forth either by the party calling them or by the other side, and after all proofs have been fully heard the court either allows or rejects the instrument.-Williams Exrs., (3d Am. ed.) *281; Bacon's Abr., tit. Exrs. & Admrs., E, 8. 27 Hooks v. Brown, 125 Ga. 122, 53 S. E. 583; Martin v. Perkins, 56 Miss. 204; Teckenbrock v. McLaughlin, 209 Mo. 533, 108 S. W. 46; Knight v. Hollings, 73 N. H. 495, 63 Atl. 38; Holt v. Ziglar, 163 N. C. 390, 79 S. E. 805; Kinard v. Riddlehoover, 3 Rich. L. (S. C.) 258. petition for probate is filed, such as once a week for three consecutive weeks, the last publication to be at least ten days prior to the hearing. If there be no such newspaper, then notice is given by posting in three of the most public places for a designated period. Sometimes notice is required to be given to the heirs of the testator resident in the state, at their places of residence if known to the petitioner, or at their last known address. Such notice may be given by mail, it being deposited in the United States postoffice with postage prepaid, some designated period prior to the hearing. The same notice must be similarly served upon all persons named in the will as executors unless they be petitioners for its probate. If the residence of some of the heirs is unknown, then notice should be directed to them at the postoffice of the place where the proceedings are to be held. Personal service will naturally dispense with such service of notice by mail.28 It is held that the proceeding relative to the probate of a will is essentially one in rem and therefore constructive notice by publication or posting is notice to the world." It is the duty of the court at the hearing of the petition for the admission of the will to probate to satisfy itself that the statutory requirements as to notice have been fully complied with, but if the record is silent on the subject, the presumption is that everything was done requisite to sustain jurisdiction, and in the absence of a showing of fraud, the presumption is conclusive.30 28 See Cal. Code Civ. Pro., §§ 1303, 1304. 29 Estate of Davis, 136 Cal. 590, 595, 69 Pac. 412. 30 Estate of Twombley, 120 Cal 350, 52 Pac. 815. § 1297. The Same Subject: How Interested Parties May Contest Will. Interested parties may appear and file their objections to the will when it is first offered for probate and the will is not admitted until after such issues have been determined. It is, however, often provided that where a will has been admitted to probate without contest, any interested party may thereafter within a specified time contest the probate and the validity of the will by filing in the court wherein the probate was granted his written petition setting forth his allegations against the validity of the will or the sufficiency of the proof, and praying that the probate be revoked. Thereupon citations are issued to the executor or administrator with the will annexed, to all legatees and devisees mentioned in the will, and to all the heirs at law or next of kin of the decedent residing in the state or to their guardians if they be minors, or to the personal representatives if they be dead. Issues are framed and the matter is tried by jury, the same as in a contest prior to the admission of the will to probate.31 Where the probate of a will is allowed upon the testimony of the subscribing witnesses without requiring the next of kin or interested parties to be cited, it is analogous to the probate in England in common form. Where the statute allows the validity of the will to be thereafter contested, it is analogous to probate in solemn form. The only issue involved in a will contest is the validity of the will, not its construction.3 32 81 See Cal. Code Civ. Pro., §§ 1327-1330. 82 McArthur v. Scott, 113 U. S. 340, 385, 386, 28 L. Ed. 1015, 5 Sup. Ct. 652; Medill v. Snyder, 71 Kan. 590, 81 Pac. 216. |