Gambar halaman
PDF
ePub

H

na

ec be

hc

Petition

may be presented to judge at

and what

Page 16.

1304. Copies of the notice of the time appointed for the probate of the will must be addressed to the heirs of the testator resident in the State, at their places of residence, if known to the petitioner, and deposited in the post office, with the postage thereon prepaid, at least ten days before the hearing. If their places of residence be not known, the copies of notice may be addressed to them, and deposited in the post office at the county seat of the county where the proceedings are pending. A copy of the same notice must in like manner be mailed to the person named as executor, if he be not the petitioner; also, to any person named as coexecutor not petitioning, if their places of residence be known. Proof of mailing the copies of the notice must be made at the hearing. Personal service of copies of the notice at least ten days before the day of hearing is equivalent to mailing.

See generally: Randolph v. Bayue, 44 Cal. 370.

ine Iourteenta section vi the ace convermig vne prva va

that, "if the heirs of the testator reside in the county, the court shall also direct citations to be issued, and served upon them to appear and contest the probate of the will at the time appointed." The appointment of an attorney to represent minor heirs, who were not notified as required by the statute, and his appearance for them, are mere nullities. Although proceedings for the proof of wills are usually treated as proceedings in rem, yet if the statute requires that certain persons must be notified, such provision must be complied with in order to give the court jurisdiction. Randolph v. Baque, October Term, 1872. (Pac. Law Rep., Vol. IV., p. 221.)

SEC. 1305. (12). The probate judge may, out of term time or at chambers, receive petitions for the probate of chambers, wills, and make and issue all necessary orders and writs to judge may enforce the production of wills and the attendance of witnesses, and may appoint special terms of his court for hearing the petitions, trials of issues, and admitting wills to probate.

do.

Hearing proof of will

Statutes of 1851, p. 448 § 12; 1861, p. 629, § 12.

SEC. 1306. (17.) At the time appointed for, or to which after proof the hearing may have been postponed, the court must require proof by affidavit, that the notices hereinbefore re

of service of notice.

quired, have been personally served or mailed and pub

lished, which being made, the court must hear testimony in proof of the will. If such notice is not proved to have been given, or if from any other cause it is necessary, the hearing may be postponed to a day certain, and notice to absentees given thereof, as original notice is required to be given. The appearance in court of parties interested is a waiver of notice.

Statutes of 1851, p. 450, § 17; 1861, p. 629, § 7.

Stamp on probate of will.-It is immaterial whether the stamp required on probate of wills, is affixed to the will upon its being admitted to probate, or to the certificate of proof thereto attached, or to the letters testamentary

[merged small][ocr errors][merged small]

1306. At the time appointed for the hearing, or the time to which the hearing may have been postponed, the Court, unless the parties appear, must require proof that the notice has been given, which being made, the Court must hear testimony in proof of the will.

Charging administrator with interest. Estate of McQueen, 44 Cal.

588.

1307. Any person interested may appear and contest the will. Devisees, legatees, or heirs of an estate may contest the will through their guardians, or attorneys appointed by themselves or by the Court, for that purpose; but a contest made by an attorney appointed by the Court does not bar a contest after probate by the party so represented, if commenced within the time provided in Article IV of this chapter; nor does the nonappointment of an attorney by the Court of itself invalidate the probate of a will.

[ocr errors]
[ocr errors]
[ocr errors]

Vi vue your navu AVA WV VAMAN and contest the probate, is a limitation which runs against the State, as the only effect of holding that it does not would be to authorize the State to institute such proceedings in the probate court, but not to confer any new jurisdiction upon the district court. State v. McGlynn, 20 Cal. 233.

The danger which might be apprehended from holding as conclusive, upon so important a matter as the probate of a will, the decree of a single

NOTE. All stamp duties on letters testamentary, and of administration, were abolished by Act of Congress, passed 1872.

court, and that not of the highest jurisdiction, is guarded against by the right of appeal to the supreme court, and by the statutory provision allowing the decision to be opened, and the validity of the will to be again contested in the same court, by any one interested, within one year from the admission to probate. Ibid.

See decisions under Sec. 1313 post.

A will having been once admitted to probate, must, so long as the probate stands, be recognized and admitted in all courts to be valid. State v. McGlynn, 20 Cal. 233.

In the absence of any proof of fraud, or mistake, or accident, a decree rejecting a will propounded for probate, will not be opened on the grounds that the counsel engaged were incompetent, or that the attesting witnesses, not being familiar with the English language, did not, on the hearing, fully understand questions put to them in that language as to the due execution of the instrument propounded. The proper remedy is by appeal. Dobke v. Munro, 1 Redf. Sur. Rep. 486.

Material issue.-In Estate of Tomlinson (35 Cal. 510), it was held that the issue raised among others that the testator was not of a sound and disposing mind at the time the will was made, was a material issue and it was error to admit the will to probate without a lawful determination of the same.

Acquiesence. After twenty years acquiesence in the terms of a will, an heir should not be allowed to dispute his own acts, or to contest the will on abstract points of law, which had never any force in California. Castro v. Castro, 6 Cal. 158.

A creditor, or other party in interest, may contest the will. Whether the objector be a creditor may be disputed. The oath of the objector is sufficient in the first instance; but if the demand be denied, he must set forth the particulars of his debt so as to show its nature and basis. When the question of interest is raised, adverse testimony will only be received where it is a question of substance; but on an application for an inventory-an accountfor increased security, etc., the positive oath, with facts showing interest, will suffice, and the merits of the claim will not be tried. Burwell v. Shaw, 2 Brad. 322; Cotterell v. Brock, 1 Brad. 148.

Where objections to the issuing of letters testamentary are filed by a person claiming under oath to be a creditor of the estate, the surrogate will entertain and try them, even though the person named as executor in the will alleges the objector to be a debtor instead of a creditor. The surrogate will assume that he is a creditor. Est. of Ferris, 1 Tucker's Sur. Rep. 15.

Issues involved. The proceeding in probate involves simply the factum of the will. The surrogate does not then examine the contents of the will, except as they bear on the question of its execution and authenticity, and the capacity of the testator. Will of McLaughlin, 1 Tucker's Sur. Rep. 79.

The legal invalidity of bequests and devises cannot be set up as a ground of contest on probate, the question being purely of the factum. Will of Langton, 1 Tucker's Sur. Rep. 301.

Who may contest the probate of will.-A legatee under a will made prior to the one offered for probate, who is neither an heir at law, nor next of kin of the deceased, may intervene to oppose the probate of the subsequent will. Turhune v. Brookfield, 1 Redf. Sur. Rep. 220.

A legatee may intervene to oppose proof of a codicil revoking his legacy. Walsh v. Ryan, 1 Brad. 433.

The taking of a legacy by the wife, under the will of the husband, will not prevent her from contesting the validity of the will, so far as it disposes of the one half interest in the common property to others. Beard v. Knox, 5 Cal. 252.

She is entitled to her own share of the common property, and to the legacy out of the share of her husband. Ibid.

It seems that a party who has not filed allegations against the validity of a will, and who has not appealed, cannot contest the probate on allegations filed and appeal taken by another party. But when upon allegations it has been fully determined that the will is not sufficiently proved, any of the next of kin, not a party to the contest, may avail himself of the decision, though it was not obtained at his instance. Mason v. Jones, 2 Brad. 325.

On proceedings for probate of a will, a claim of interest positively sworn to, will make the claimant a contestant before the court and a party to the proceedings. Norton v Lawrence, 1 Redf. Sur. Rep. 473.

The appearance of an interested party in open court on the return day, though not served with citation, entitles them to be heard. Ibid.

when no

SEC. 1308. (19.) If no person appears to contest the Probate, probate of a will, the court may admit it to probate on the contest. testimony of one of the subscribing witnesses only, if he testifies that the will was executed in all particulars as required by law, and that the testator was of sound mind at the time of its execution.

Statutes of 1851, p. 450, § 19.

Where the testator and the witnesses to a will are dead, proof of the signature of the witnesses and of the testator will be sufficient evidence of its due execution. Tevis v. Pitcher, 10 Cal. 465.

On the trial of an issue of fact involving the validity of a will, a subscribing witness thereto is not rendered incompetent as a witness by holding lands devised therein in trust for a devisee, and without having any interest himself therein. Peralta v. Castro, 6 Cal 344. See authorities under section 1315, post.

SEC. 1309. An olographic will may be proved in the Olographic same manner that other writings are proved.

See Sec. 1929, et seq., Code of Civil Procedure.

wills.

ARTICLE II.

CONTESTING PROBATE OF WILLS.

SECTION 1312. Contestant to file grounds of contest and petitioner to reply.

1313. How jury obtained and trial had.

1314. Verdict of jury. Judgment. Appeal.

1315. Witnesses, who and how many to be examined. Proof of
handwriting admitted, when.

Contestant to file

grounds of

petitioner

to reply.

N. S.

1316. Testimony reduced to writing for future evidence.
1317. If proved, certificate to be attached.

1318. Will and proof to be filed and recorded

SEC. 1312. ( 20.) If any one appears to contest the will, contest and he must file written grounds of opposition to the probate thereof, and serve a copy on the petitioner and other residents of the county interested in the estate, any one or more of whom may demur thereto to any of the grounds of demurrer provided for in part two, title six, chapter three of this code. If the demurrer is sustained, the court must allow the contestant a reasonable time, not exceeding ten days, within which to amend his written opposition. If the demurrer is overruled, the petitioner and others interested may jointly or separately answer the contestant's grounds, traversing or otherwise obviating or avoiding the objections. Any issues of fact thus raised, involving—

How jury obtained and trial had.

1. The competency of the decedent to make a last will and testament;

2. The freedom of the decedent at the time of the execution of the will from duress, menace, fraud or undue influence;

3. The due execution and attestation of the will by the decedent or subscribing witnesses; or,

4. Any other substantial grounds affecting the validity of the will

Must, on request of either party in writing (filed three days prior to the day set for the hearing), be tried by a jury. If no jury is demanded, the court must try and determine the issues joined. On the trial, the contestant is plaintiff and the petitioner is defendant.

Statutes of 1851, p. 450, § 20; 1861, p. 628. § 9 ; 1867–8, p. 628, § 1. See decisions under section 1315, post.

SEC. 1313. ( 20.) When a jury is demanded, the probate court must summon and impanel a jury to try the case, in the manner provided for summoning and impaneling trial juries in courts of record, and the trial must be conducted in accordance with the provisions of part two, title eight, chapter four, of this code. A trial by the court must be conducted as provided in part two, title eight, chapter five, of this code.

Statutes of 1851, p. 20; 1867-8, p. 628, § 1.

« SebelumnyaLanjutkan »