Will and proof to be filed and recorded.

sisted; that it was done merely for the sake of peace, so that the motive was tantamount to force and fear. Where persuasion is used to a testator on his death bed, when even a word distracts him, it may amount to force and inspiring fear. 1 Jarman on Wills, p. 39.

With regard to what deceit shall annul a testament on the ground of fraud; as in the case of a will made under fear, it is left to the judgment of the tribunal trying the case, comparing the deceit with the capacity or understanding of the person deceived, to discern whether it be such as may overthrow the testament or not. Ibid, p. 40; see, also, cases there cited.

There is nothing unlawful in suggestion, provided it be not carried to the degree of importunity, and the testator be in the full possession of his faculties. Tunison v. Tunison, 4 Brad. 138.

As to undue influence dependent on religious feelings, see Norton v. Kelly, 2 Eden, 286; Huguenin v. Basely, 14 Vesey, 273; Weir's Will, 9 Dana, 440.. Lucid interval.-A will made in a lucid interval may be valid, but the facts establishing intelligent action must be shown. The nature and character of the instrument, and of its dispositions, have great influence in determining the mind of the court as to the capacity of the decedent at the time. Gambault v. Public Administrator, 4 Brad. 226.

Incapacity to make will.-Proof of incapacity from attacks of delirium tremens receives additional effect from the circumstances being an unequal one. Waters v. Cullen, 2 Brad. 354.

Besides being satisfied of actual capacity, the probate court must determine whether, in performing the particular act in question, the testator understood the contents and effect of the instrument. Burger v. Hill, 1 Brad. 360.

For a full and elaborate statement of the doctrines of the law regarding mental capacity to make a will, vide 1 Redf. on Wills, pp. 53 to 163, and authorities cited there. And see Section 1276, et seq. on p. post, and authorities cited there.

Omission to attach certificate to will.—The omission by the probate court of San Francisco, in its proceedings in probating wills previous to 1855, to attach to the will and file with it for record the certificate mentioned in section 24 of the act concerning estates of deceased persons is not a fatal defect invalidating the probates of that period. In re Will of Warfield, 22 Cal. 51.

SEC. 1318. ( 25.) The will and a certificate of the proof thereof, together with all the testimony taken, must be filed by the clerk, and recorded by him in a book to be provided for the purpose. (a)

Statutes of 1851, p. 451, § 25.

Presumptions in favor of records. When the papers in the matter of an estate are offered in evidence in a collateral action, the court in which they are offered cannot review the action of the probate court upon the question, whether the stamp affixed upon the probate of the will was such as the value of the estate required. The presumption is that the probate court passed upon the question of the value of the estate and its decision is final. Satterlee v. Bliss, 36 Cal. 489.

(a) NOTE.-Section 26 (Stat. 1851, p. 451) is omitted, it being provided for in Part IV of the Code of Civil Procedure.

ARTICLE III.

PROBATE OF FOREIGN WILLS.

SECTION 1322. Wills proved in other States to be recorded, when and where. 1323. Proceedings on the production of a foreign will.

1324. Hearing proofs of probate of foreign will.

ed in other

recorded,

SEC. 1322. ( 27.) Every will duly proved and allowed Wills provin any other of the United States, or in any foreign country states to be or state, may be allowed and recorded in the probate court when and of any county in which the testator shall have left any estate.

Statutes of 1851, p. 451, § 27; 1863, p. 37, § 1.

The record of a probate court, consisting of the last will and testament, testimony of the subscribing witnesses, petition of the executor and order admitting will to probate, are admissible in evidence for the purpose of proving the will, even if no letters have issued. Larco v. Casanueva, 30 Cal. 560.

Wills under the Spanish and Mexican law, and questions arising upon the probate of the will of a Mexican citizen of California, executed September, 1846, considered and discussed. Panaud v. Jones, 1 Cal. 488.

A will made in Texas operating upon property there situated, must be interpreted by the law of that State. To that law reference must be had, to determine the capacity of the testator, the extent of his power of disposition, and the conditions upon which the powers of alienation vested in the guardian of his children, appointed by the will, is to be exercised. Norris v. Harris, et al., 15 Cal. 226.

In the absence of proof as to the laws of Texas, the courts of this State in interpreting a will made in that State, will presume its laws to be in accordance with the laws of California.

Ibid.

where.

on the pro

foreign will.

SEC. 1323. ( 28.) When a copy of the will and the Proceedings probate thereof, duly authenticated, shall be produced by duction of a the executor, or by any other person interested in the will, with a petition for letters, the same must be filed, and the court or judge must appoint a time for the hearing; notice whereof must be given as herein before provided for an original petition for the probate of a will.

Statutes of 1851, p. 451, § 28; 1864, p. 357, § 3.

See section 1303 ante.

proof of pro

SEC. 1324. ( 29.) If, on the hearing, it appears upon Hearing the face of the record that the will has been proved, allowed, bate of forand admitted to probate in any other of the United States, N.S. or in any foreign country, and that it was executed accord

eign will.

ing to the law of the place in which the same was made, or
in which the testator was at the time domiciled, or in con-
formity with the laws of this state, it must be admitted to
probate and have the same force and effect as a will admit-
ted to probate in this state, and letters testamentary or of
administration issued thereon.

Statutes of 1851, p. 451, § 29; 1864, p. 368, § 4; 1861, p. 630.
See authorities under Section 1322, ante.

The probate

may be con

in one year.

ARTICLE IV.

CONTESTING WILLS AFTER PROBATE.

SECTION 1327. The probate may be contested within one year.
1328. Citation to be issued to parties interested.

1329. The hearing had on proof of service.

1330. Petitions to revoke probate of will tried by jury or court. Judgment what.

1331. On revocation of probate, powers of executor, etc., cease, but not liable for acts in good faith.

1332. Costs and expenses, by whom paid.

1333. Probate, when conclusive. One year after removal of disability given to infants and others.

SEC. 1327. (8 30.) When a will has been admitted to tested with- probate, any person interested may, at any time within one year after such probate, contest the same or the validity of the will. For that purpose he must file in the court in which the will was proved, a petition in writing, containing his allegations against the validity of the will or against the sufficiency of the proof, and praying that the probate may be revoked.

Statutes of 1851, p. 451. § 30.

Vide section 1307, ante, and cases cited there, and section 1383, post.

A proceeding by petition to the probate court to obtain an order that a former probate of will therein be adjudged void, on the ground of want of jurisdiction and that the will be admitted anew to probate is not a direct proceeding to set aside the former probate, but a collateral proceeding, in which such former probate can only be attacked for want of jurisdiction, and not for irregularity. In re Will of Warfield, 22 Cal. 51.

In proceedings to prove an alleged will of a later date and to revoke the probate of one already admitted to probate, allegations need not be filed within one year, as under the statute. Will of Merchant, 1 Tucker's Sur. Report, 151.

Where one of the next of kin, who was cited to attend probate, did not contest the probate, and gave no sufficient reason for her failure to contest but afterwards moved to vacate the order of probate, claiming that others next of kin existed who were not cited, which the executor denied, the motion was refused by the Surrogate, there appearing to be no merits in her application, and there being a remedy given by statute, on the filing of allegations against the probate by the petitioner, or any other claiming to be next of kin. Will of Fay, 1 Tucker's Sur. Rep., 405.

Page 29.

1328. Upon filing the petition, a citation must be issued to the executors of the will, or to the administrators with the will annexed, and to all the legatees and devisees mentioned in the will, and heirs residing in the State, so far as known to the petitioner; or to their guardians, if any of them are minors; or to their personal representatives, if any of them are dead; requiring them to appear before the Court on some day of a regular term, therein specified, to show cause why the probate of the will should not be revoked.

103.

had on

service.

SEC. 1329. (2 32.) At the time appointed for showing The hearing cause, or at any time to which the hearing is postponed, proof of personal service of the citations having been made upon any persons named therein, the court must proceed to try the issues of fact joined in the same manner as in an original contest of a will.

Statutes of 1851, p. 451, § 32.

revoke pro

tried by jury

N. 8.

SEC. 1330. (8 33.) In all cases of petitions to revoke Petitions to the probate of a will, wherein the original probate was bate of will granted without a contest, on written demand of either or court. party, filed three days prior to the hearing, a trial by jury must be had as in cases of the contest of an original petition to admit a will to probate. If, upon hearing the Judgment, proofs of the parties, the jury shall find, or if no jury is what. had, the court shall decide, that the will is for any reason invalid, or that it is not sufficiently proved to be the last will of the testator, the probate must be annulled and revoked.

Statutes of 1851, p. 451, § 33.

On revoca

tion of probate, powers of executor,

SEC. 1331.

(234.) Upon the revocation being made,

the powers of the executor or administrator with the will etc., ceases, annexed must cease; but such executor or administrator ble for acts shall not be liable for any act done in good faith previous to the revocation.

but not lia

in good

faith.

Costs and

expenses,

paid.

Statutes of 1851, p. 451, § 34.

SEC. 1332. (35.) The fees and expenses must be paid by whom by the party contesting the validity or probate of the will, if the will in probate is confirmed. If the probate is revoked, the costs must be paid by the party who resisted the revocation, or out of the property of the decedent, as the court directs.

1333. If no person, within one year after the probate of a will, contest the same or the validity thereof, the probate of the will is conclusive; saving to infants and persons of unsound mind, a like period of one year after their respective disabilities are removed.

Setting aside of probate, grounds for.-In the State of California the jurisdiction of the probate court is the same in regard to wills of real estate as to wills of personal estate. The decision of that court is conclusive upon the question of the validity or invalidity of a will, such decision cannot be questioned collaterally in any other court, and it cannot be reviewed or set aside by the court of chancery on an allegation of fraud or any other ground. State v. McGlynn, 20 Cal. 233.

See latter part of opinion in Leese v. Clark, 28 Cal. 26.

Conclusiveness of probate at common law. At common law, the granting of letters testamentary is conclusive proof of the probate of a will. The informalities and irregularities which may appear in the entries of the proceedings of a probate court will not destroy the effect of a judgment establishing a will. Dennison v. Ingram, Dallam's Texas Dig. 519.

Proceedings taken within one year.-After the admission of a will of personal property to probate, allegations against the validity of the will and its probate having been filed within the year, it is not sufficient for the executors on the citation to show cause, etc., why the probate of the will should not be revoked, to present the probate of the will as prima facie evidence of its validity. If the allegations are sufficiently broad, the will must be proved de novo. Though the probate is generally conclusive as to the validity of the will, it is of no force in a proceeding instituted directly to impeach the probate itself. Collier v. Executors of Idley, 1 Brad. 94.

Probate of later will.-Although a will has been admitted to probate, a legatee under a later will may propound the latter for probate; and is not