CHAPTER III.

PRACTICE IN THE PROBATE COURTS.

THIS court by law, has charge of the estates of deceased persons, and those incompetent to manage them, and control and charge of the persons and estates of minors, and those who are insane. The practice of the court is the same as that of the district court, varied only where the nature of the business requires it.

The proceedings of this court are those in term and those out of term, all of which must be recorded in the minute book of the court, and at the end of each term signed by the judge.

Those authorized to be made out of term are orders necessary for the probate of a will and to compel its production, for granting letters testamentary and administration, for granting letters guardianship, all citations, orders, decrees and attachments, to compel new bonds, new sureties, or additional surety, given by executors, administrators or guardians, orders appointing appraisers of estates; all orders for citations against persons charged with embezzling money property or effects of an estate, and all orders for citation against persons who are charged with having money, goods, chattels, bonds, accounts, or other papers belonging to an estate, which came to his possession, and held in trust for the executor or administrator, and to render account thereof, and his proceedings in relation thereto, all orders making allowance for widow and child or children, until letters upon. the estate are granted; all orders allowing or rejecting claims against estates, all orders to compel a surviving partner of the deceased to settle with the executor or administrator, all orders for citations against guardians, executors, or adminis

trators, to show cause why they should not exhibit their accounts and vouchers, and to show cause after they have been exhibited why they should not settle them, all orders for citations, to show cause why they should not be attached and committed to jail, for not so exhibiting their accounts and vouchers, or settling the same; all orders of attachment and commitment for failing so to exhibit, or settle their accounts, all orders of citation, attachment and commitment to jail against guardians, executors, or administrators, to compel them to answer under oath touching their proceedings as such guardian, executor, or administrator, all orders to suspend guardians, executors, and administrators, for wasting, embezzling, or until investigation is had of the matter, and all orders necessary to appoint a special administrator for such estates during the suspension, all orders to compel such suspended guardians, executors, or administrators, to appear and answer under oath in regard to their proceedings. All other proceedings of the court are to be done in term time, or at a special term appointed by the judge for that special proceeding.(a)

All writs and orders ordered by the judge or court are to be issued by the clerk, signed by him and authenticated with the seal of the court, except subpoenas, the seal to them not being required. All notice given to parties is to be by citation, briefly stating the nature of the proceeding unless ordered to be done differently by the court. The citation or notice is to state the time and place the party is required to appear before the court. Service of the citation, unless otherwise directed, is to be at least five days before its return, and is to be served by copy of the writ delivered to the person required to be served with it.(b)

SETTLEMENT OF ESTATES.

A person may alter the descent and distribution of his estate by will, and the estate is to be settled according to the

(a) 2 Cal. Stat, ch. 124, p. 448.

(b) 2 Cal. Stat., ch. 124, p. 448.

will. If no will is made, then the estate is to descend and be distributed according to law. (a)

Where a will is made and an executor named who is twenty-one years of age, and is not incompetent from habits of drunkenness, improvidence, or want of understanding, or convicted of an infamous crime he is entitled to execute the will, and settle the estate, but before he can commence the execution of his trust, the will is to be proven and admitted to probate, and the executor is to give bond to the state, with two or more sufficient securities to be approved of by the probate court, in a sum double the amount of the estate; but if the will dispenses with a bond. from the executor, the court is to do so also, unless it appears necessary, and then it is to be required by the court as in other cases. When there are several executors, each is to give a separate bond.(b)

WILL.

A will is valid when made by persons over the age of eighteen years, of sound mind, and may extend to the disposition of the whole of the testator's property, both real and personal.

A sailor or mariner in actual service may dispose of his personal property by a nuncupative will, if made during such service. Any other person may dispose of five hundred dollars of an estate by such will, if it is made at his or her dwelling, and during their last sickness, or at a place where they had resided for ten days or more, or where they had been taken sick from home and died before their return; but such nuncupative will to be valid, must be witnessed by two witnesses who were present at the making, and the testator or testatrix must bid some one present to bear witness that such was his or her will, or to that effect. Wills of other persons and in all other cases must be reduced to writing, and signed by the testator or testatrix or some person for

(a) 2 Cal. Stat., p. 453, sec. 42.

(b) 2 Cal. Stat., p. 448, ch. 124.

them, in their presence and by their express command, and attested by two or more competent witnesses, who subscribed their names as such in the presence of the person

making the will.

A married woman cannot make, alter, or revoke a will, unless by the written consent of her husband endorsed upon the same, except in cases when by marriage contract she has the right. Her wills must be reduced to writing and witnessed as others are.

All beneficial devises, gifts, or legacies given by the will to a subscribing witness are void, unless the will can be proved by two other witnesses.

Where by the will not being proved, a part of the testator's estate would descend to the witness, the witness is competent, and the share equal to the gift, devise, or legacy, is to be paid the witness by the executor.

A will may be revoked by burning, cancelling, or obliterating the same by the testator or some person for him in his presence, or by some other will, codicil, or instrument of writing executed and witnessed as a will.

The will of a feme sole is revoked by marriage. The will of a single man is revoked by marriage, unless his wife is provided for by marriage contract, or provided for in his will, or mentioned in his will in such manner as to show an intention not to make any provision for his wife.

A bond covenant or agreement made after the execution or publication of a will to convey any property devised will not revoke it, the parties taking such instrument is left to his remedies against the legatees, as if the property had been inherited by them as heirs; so too a charge or incumbrance put upon any portion of an estate after it was devised, does not operate as a revocation, but the devise is to pass to the legatce, and the charge or incumbrance is a charge or incumbrance upon the whole estate. If after the execution and publication of a will a child is born to the testator or testatrix, and no provision made therein, the will is not revoked, but the child is entitled from the legatees, to the

share of his or her parents' estate, as if no will was made, unless it is apparent from the will that the parent intended to make no provision for such child.

And where no provision is made by the parent for his child, or the issue of his deceased child in the will, and from the will it is not apparent that such omission was intended, the child or issue thereof is entitled to share in the estate of the parent as if no will was made.

Where the testator shall name a debtor his executor, it does not extinguish the debt but must be settled for as other moneys in his hands, and the bequest of the liability of the debtor, does not operate as against creditors, if there should not be assets enough without it to satisfy them, and such bequest is to be considered as any other.(a)

Where a bond, covenant or agreement is made after the will, or a charge or incumbrance is put upon any part of the estate devised by the will, or no provision is made for children born after making the will, or no provision is made for those born or their issue, the damages for breach of the contract, or charge or incumbrance is to be taken from the estate not disposed of by the will, if any, but if none or not sufficient, then the legatees, in proportion to the value of their legacies, are to respond to or pay the same unless the obvious intention of the testator or testatrix would be defeated, if so then the specific legacy must be exempted from such proportional payment.

If a child or children, or their descendants are not named or provided for in the will, and have received in the life. time of the parent, by way of advancement, money, or property, equal to their share of the estate, they are to have nothing from the estate.

Whenever any estate is by will devised to a relation of the testator or testatrix, and the devisee dies before the testator or testatrix the descendants of such devisee or legatee take the estate.

All devises of real property are to be construed, so as to transfer all the interest that the devisor had to the property

(a) 2 California Statutes, p. 461, sec. 109.