and remit the cestui que trust to a foreign power, notwithstanding the voluntary removal of the trustee thither. McGee v. Polk et al., 24 Georgia, 406. Conclusiveness of probate of will.--The probate of a will until revoked is conclusive of its validity in all collateral proceedings, and its rejection by the probate court is also conclusive of its invalidity. Castro v. Richardson, 18 Cal., 478. Mexican system of administration. The Mexican system of administration upon the estates of deceased persons, was superseded by the adoption of the common law in this State, April 13th, 1850. People v. Senter, 28 Cal. 502. The estates of deceased persons in this State who died prior to the passage of the probate act of 1850, and subsequent to the adoption of the common law, can be administered on in accordance with the provisions of the probate acts in force. Ibid. Void letters.-Letters granted by a court having no jurisdiction are void; and the court having jurisdiction may proceed to grant letters without a revocation of those previously issued. Ex parte Barker, 3 Leigh, 719, and see Holyoke v. Haskins-noted ante, p. 5. diction de first appli SEC. 1295. ( 3.) When the estate of the decedent is When jurisin more than one county, he having died out of the State, cided by and not having been a resident thereof at the time of his cation. death, or being such non-resident and dying within the State and not leaving estate in the county where he died, the probate court of that county in which application is first made for letters testamentary or of administration, has exclusive jurisdiction of the settlement of the estate. Statutes of 1851, p. 448, § 3; 1861, p. 628; 1864, p. 367, § 2. CHAPTER II. OF THE PROBATE OF WILLS. ARIICLE I. PETITION, NOTICE AND PROOF. Custodian of will to deliver same, to whom. Penalty. ARTICLE I. PETITION, NOTICE AND PROOF. SECTION 1298. Custodian of will to deliver same, to whom; Penalty. 1300. Contents of petition. 1301. When executor forfeits right to letters. 1302. Will to accompany petition, or its presentation prayed for and how enforced. SECTION 1303. Notice of petition for probate, how given. 1304. Heirs and named executors to be notified, how. 1305. Petition may be presented to judge at chambers, and what judge may do. 1306. Hearing proof of will after proof of service of notice. 1308. Probate, when no contest. 1309. Olographic wills. SEC. 1298. (8 4.) Every custodian of a will, within thirty days after receipt of information that the maker thereof is dead, must deliver the same to the probate court having jurisdiction of the estate, or to the executor named therein. A failure to comply with the provisions of this section makes the person failing responsible for all damages sustained by any one injured thereby. Statutes of 1851. p. 449, § 4. Wills which took effect before passage of statutes.-The laws of California, before the adoption of the constitution, did not require wills to be probated. Our statutes do not apply to wills that took effect before they were passed. They must rest for their validity upon the laws under which they were made. Under them the heirs became entitled to immediate possession. Grimes' Estate v. Norris, 6 Cal. 261; Panaud v. Jones, 1 Cal. 488; Castro v. Častro, 6 Cal. 158; Tevis v. Pitcher, 10 Cal. 465. The will of a testator dying before the organization of a State government did not require to be probated under the then existing laws. Grimes' Estate v. Norris, 6 Cal. 621. Our statute of wills not only fails to require the probate of wills executed before its passage, but it must from its terms be concluded that the Legislature actually intended to exclude such wills from the operation of the statute altogether, leaving their validity to depend upon the laws under which they were made, and not disturbing rights which had grown up under the former system. Ibid. A will only becomes executed on the death of the testator, and therefore this construction does not affect wills made before the passage of the statute, where the testator did not die till after its passage. Ibid. Foreign wills.—A will made in Texas, operating upon property there situated, must be interpreted by the law of that State. Norris v. Harris, 15 Cal. 226. In absence of proof as to the laws of Texas, the courts of the State in interpreting a will made in that State, will presume its laws to be in accordance with the laws of California. Ibid. petition for SEC. 1299. (2 5, 9.) Any executor, devisee or legatee Who may named in any will, or any other person interested in the probate of estate, may, at any time after the death of the testator, petition the court having jurisdiction to have the will proved, will. Page 13. 1300. A petition for the probate of a will must show: 1. The jurisdictional facts; 2. Whether the person named as executor consents to act, or renounces his right to letters testamentary; 3. The names, ages, and residence of the heirs and devisees of the decedent, so far as known to the petitioner ; 4. The probable value and character of the property of the estate; 5. The name of the person for whom letters testamentary are prayed. No defect of form or in the statement of jurisdictional facts actually existing shall make void the probate of a will. 8 of When executor forfeits ters. (N. S.) 2. Whether the person named as executor consents to act, or renounces his right to letters testamentary; 3. The names, ages and residence of the heirs and devisees of the decedent; 4. The probable value and character of the property of the estate; 5. The name of the person for whom letters testamentary are prayed. No defect of form or in the statement of jurisdictional facts actually existing shall make void the probate of a will. Statutes of 1851, p, 449, § 6; 1861, p. 628, § 6. The jurisdiction in a proceeding to probate a will depends upon certain facts which the court on reviewing the will must inquire into and determine; and the mere possession of the will vests the court with all the authority necessary for the purpose. Estate of Howard, 22 Cal. 395. Where a petition for letters of administration is addressed "To the Honorable the Judge of the Probate Court, of the County of Santa Clara," and goes on; "the petition of M. S. of Monterey, &c, shows that Dr. John T., late a resident of the county aforesaid, died in said county," &c., held that the word "aforesaid," refers to the county named, to-wit: "Santa Clara," and not "Monterey," and hence that the petition sufficiently shows that Dr. T.. was a resident of Santa Clara County at the time of his death. Townsend v. Gordon, 19 Cal. 188. SEC. 1301. (2 5.) If the person named in a will as exright to let ecutor, for thirty days after he has knowledge of the death of the testator, and that he is named as executor, fails to petition the proper court for the probate of the will, and that letters testamentary be issued to him, he has renounced his right to letters, and the court may appoint any other competent person administrator, unless good cause for delay is shown. Statutes of 1858, p 449. §5. No petition is required as the foundation of a proceeding to probate a will; a petition is only necessary under the statute where the executor named therein accepts the trust, and then not for jurisdictional purposes. Estate of Howard, 22 Cal. 395. Where one of two persons nominated in a will as executors renounced, and the acting executor afterwards died. Held, that the renunciation could be retracted, and letters de bonis non issued. Estate of Dempsey, 1 Tucker's Sur. Reports, 50. The will appointing an executor gives him a right to administer, of which he can be deprived only by his renunciation or refusal to appear when cited to prove the will. Estate of Sponsler, 12th Penn. (P. F. Smith). The executor may elect to accept before probate, by doing such acts as amount to administration. Whatever would make a man liable as executor de son tort will be deemed an election of the executorship. Ibid. Renunciation must be evinced by some act entered or recorded. Taking the oath is the final and conclusive act; when taken the executor has elected and cannot divest himself of the office but may be compelled to perform it. Where an executor died before he received letters, and was in possession of chattels belonging to decedent, the administrator of such executor was bound to account for these chattels in settlement of the account of the executor. Ibid. company its presen ed for, how enforc SEC. 1302. (22 10, 11.) If it is alleged in any petition Will to aethat any will is in the possession of a third person, and the petition on court is satisfied that the allegation is correct, an order tation, prad must be issued and served upon the person having posses-ed. N. 5.) sion of the will, requiring him to produce it at a time named in the order. If he has possession of the will and neglects or refuses to produce it in obedience to the order, he may, by warrant from the court be committed to the jail of the county, and be kept in close confinement, until he produces it. Notice of probate, (N. S.) SEC. 1303. (22 13, 16.) When the petition is filed and petition for the will produced, the probate judge must fix a day for hear- how given. ing the petition, not less than ten nor more than thirty days from the production of the will. Notice of the hearing shall be given by the clerk of the court, by publishing the same in a newspaper of the county; if there be none, then by three written or printed notices posted at three of the most public places in the county. If the notice is published in a weekly newspaper, it must appear therein on at least three different days of publication, and if in a newspaper published oftener than once a week, it shall be so published that there must be at least ten days from the first to the last day of publication, both the first and the last day being included. If the notice is by posting, it must be given at least ten days before the hearing. Statutes of 1851, p. 449, §§ 13, 16; 1861, p. 629, § 5 amends §§ 13, 16; 1865-6, p. 765, § 1. Notice of an application to admit to probate an alleged will under section 13, or a copy of such will with an authenticated probate thereof, under section 28 of the probate law, is not a summons, notice or advertisement required to be published in the "State Paper,” under the act of March 29th, 1870. Est. of Miller, 39, Cal. 550 NOTE. The law under which this decision was rendered has been repealed. See statute 1871-72, p. 123. |