concluded by the probate of the previous will. And if the two instruments are not entirely inconsistent, both taken together may be declared to constitute the last will of deceased. Weir v. Fitzgerald, 2 Brad. 42. ARTICLE V. PROBATE OF LOST OR DESTROYED WILL. SECTION 1338. Proof of lost or destroyed will to be taken. 1339. Must have been in existence at time of death. 1340. To be certified, recorded and letters thereon granted. 1341. Court to restrain injurious acts of executors or adminstrators or destroyed taken. SEC. 1338. (8 37.) Whenever any will is lost or de- Proof of lost stroyed, the probate court must take proof of the execution will to be and validity thereof and establish the same; notice to all persons interested being first given, as prescribed in regard to proofs of wills in other cases. All the testimony given must be reduced to writing and signed by the witnesses. Statutes of 1851, p. 452, § 37. been in ex time of SEC. 1339. (2 38.) No will shall be proved as a lost or Must have destroyed will, unless the same is proved to have been in istence at existence at the time of the death of the testator, or is death. shown to have been fraudulently destroyed in the lifetime of the testator, nor unless its provisions are clearly and Page 31. 1340. When a lost will is established, the provisions thereof must be distinctly stated and certified by the Probate Judge, under his hand and the seal of the Court, and the certificate must be filed and recorded as other wills are filed and recorded, and letters testamentary or of administration, with the will annexed, must be issued thereon, in the same manner as upon wills produced and duly proved. The testimony must be reduced to writing, signed, certified, and filed as in other cases, and shall have the same effect as evidence, as provided in section thirteen hundred and sixteen. tration, with the will annexed, must be issued thereon, in the same manner as upon wills produced and duly proved. Statutes of 1851, p. 452, § 39. Court to restrain inju executors or tors during SEC. 1341. (8 40.) If, before or during the pendency rious acts of of an application to prove a lost or destroyed will, letters administra of administration are granted on the estate of the testator, proceedings or letters testamentary of any previous will of the testator are granted, the court may restrain the administrators or executors so appointed from any acts or proceedings which would be injurious to the legatees or devisees claiming under the lost or destroyed will. to prove lost will. Statutes of 1851, p. 452, § 40. Nuncupative wills, when and how admit bate. N. S. ARTICLE VI. THE PROBATE OF NUNCUPATIVE WILLS. SECTION 1344. Nuncupative wills, when and how admitted to probate. wills. SEC. 1344. (8.) Nuncupative wills may at any time, within six months after the testamentary words are spoken ted to pro- by the decedent, be admitted to probate, on petition and notice as provided in article one, chapter two, of this title. The petition, in addition to the jurisdictional facts, must allege that the testamentary words or the substance thereof were reduced to writing within thirty days after they were spoken, which writing must accompany the petition. Additional requirements in Statutes of 1850, p. 178, § 8. See cases cited under section 1288, et seq., of Civil Code, post. Sec. 1345. (8 9.) The probate court must not receive or entertain a petition for the probate of a nuncupative will, nuncupative until the lapse of fourteen days from the death of the testa probate of wills. N. S. tor, nor must such petition at any time be acted on until the testamentary words are, or their substance is, reduced to writing and filed with the petition, nor until the surviving husband or wife (if any), and all the other persons resident in the State or county, interested in the estate, are notified as herein before provided. Statutes of 1850, p. 178, § 9. and appoint SEC. 1346. Contests of the probate of nuncupative, wills Contests and appointments of executors and administrators of the ments to estate devised thereby must be had, conducted and made conform to as herein before provided in cases of the probate of written wills. N.S. wills. See section 1327, ante, et seq. provisions as to other 3 CHAPTER III. OF EXECUTORS AND ADMINISTRATORS, THEIR LETTERS, BONDS, ARTICLE I. LETTERS TESTAMENTARY AND OF ADMINISTRATION, HOW AND TO II. FORM OF LETTERS. III. LETTERS OF ADMINISTRATION, TO WHOM, AND ORDER IN WHICH THEY ARE GRANTED. IV. PETITION AND CONTEST FOR LETTERS, AND ACTION THEREON. TION. X. REMOVALS AND SUSPENSIONS IN CERTAIN CASES. To whom letters on ARTICLE I. LETTERS TESTAMENTARY AND OF ADMINISTRATION, HOW AND TO SECTION 1349. To whom letters on proved will to issue. 1350. Who are incompetent as executors or administrators. Letters with will annexed to issue, when. 1351. Interested parties may file objections. 1352. Unmarried woman executrix or administratrix marrying, her authority ceases. Married woman named may be executrix but not administratrix. 1353. Executor of an executor. 1354. Letters of administration durante minore ætate. 1355. Acts of a portion of executors valid. 1356. Authority of administrators with will annexed. Letters, how issued. SEC. 1349. (241.) The court admitting a will to probate, proved will after the same is proved and allowed, must issue letters to issue. thereon to the persons named therein as executors who are competent to discharge the trust, who must appear and qualify, unless objection is made as provided in section thirteen hundred and fifty-one. Statutes of 1851, p. 452, § 41. The judgment of the supreme court settling the right of two persons to be appointed executors of an estate should be carried into effect by the probate court, notwithstanding the death of one of the persons before the probate court acts on the matter. Estate of Pacheco, 29 Cal. 224. It is not necessary to the validity of a probate that a formal judgment or decree that the will is admitted to probate, or is proved, should be entered; a direct statement that the will is proved, although entered in the minutes as part of, and preliminary to, an order directing letters to issue, is sufficient. In re Warfield, 22 Cal. 51. § 1350. Add at end thereof as designated and provided for the grant of letters in cases of intestacy. [In effect May 31, 1878.] 3. Adjudged by the court incompetent to execute the duties of the trust by reason of drunkenness, improvidence or want of understanding or integrity. with If the sole executor or all the executors are incompetent, Letters wit or renounce or fail to apply for letters, or to appear and nexed to qualify, letters of administration with the will annexed must be issued. Statutes of 1851, pp. 453–4, §§ 42, 55; 1861, p. 631, §§ 13, 18. As to the last clause in this section, see Kidwell v. Brumagim, 32 Cal. 436 cited under section 1356, post; see, also, Estate of Pacheco, 23 Cal. 476, cited under sections 1385 and 1386, post. Appeal.-Administrator with the will annexed.—If the probate court refuses to admit a will to probate, and this court, on appeal, directs the will to be so admitted, it will not direct the probate court to issue letters of administration with the will annexed, to the petitioner, unless the probate court has found, as a fact, that the petitioner is a proper person to receive letters. Estate of Wood, 36 Cal. 75. Executorship cannot be delegated. Where a testator nominated and appointed P. K. and J. T. as executors, and authorized the survivor, if one should die, to appoint another executor by his deed, and the survivor appointed E. W. by his deed: Held, that the surrogate had no power to issue letters testamentary to E. W., as he was not named in the will. Executorship cannot be delegated under the statutes of New York. Estate of Bronson, 1 Tucker's Sur. Rep. 164. Relatives of judge, when incompetent.-A judge of probate appointed his brother-in-law administrator of an estate of which his father-in-law was a creditor: Held, that the appointment was void. Hall v. Thayer, 105 Mass. 219. issue, when. |