§ 10. If it be alleged in any petition that any will is in the possession of a third person, and the court shall be satisfied that the allegation is correct, an order shall be issued and served upon the person having possession of the will, requiring him to produce it at a time to be named in the order. [Forms No. 7, 18, Appendix.]

§ 11. 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 shall produce the will.

[Forms No. 65, 66, Appendix.]

Compare Sec. 63 of the Judicial Act, ante p 17, and Sec. 117, post.

Applications

§ 12. Applications for the probate of a will, or for letters testamentary, may be made to the probate judge out of term- and orders may time, and he may also, out of term-time, issue all necessary orders and warrants to enforce the production of any will.

§ 13. When any will shall have come into the possession of the probate court, the court shall appoint a time for proving it, which shall not be less than ten, nor more than thirty days, and shall cause notice to be given thereof, by publication, not less than twice a week, in some newspaper, if there is one printed in the county, if not, by notices in writing posted in three public places in the county.

[Forms No. 13, 11, Appendix.]

be made out of term time.

Court to ap

point time for

proving will.

Notice thereof

to be given.

Citation to heirs, if they re

ty.

§ 14. If the heirs of the testator reside in the county, the court shall also direct citations to be issued and served upon side in the counthem to appear and contest the probate of the will at the time appointed.

[Form No. 12, Appendix.]

As to service of Citation, see Sections 288-290, inclusive, post.

Citations to

15. If the will is presented by any other person than the one named as executor, or if it is presented by one of several persons named as executors in the will, citations co-executors, etc. shall also be issued and served upon such person or persons, if resident within the county.

[Form No. 12, Appendix.]

Subpoenas to

§ 16. The court shall also direct subpoenas to be issued to the subscribing witnesses to the will, if they reside in the subscribing witcounty.

nesses,

of will.

§ 17. At the time appointed, or at any time to which the Hearing proof hearing may be continued, upon proof being made that notice has been given as required in the preceeding sections, the court shall proceed to hear the testimony to prove the will. [Form No. 16, Appendix.]

Who may contest will. Court

§ 18. Any person interested, may appear and contest the to appoint attor will. If it appear that there are minors who are interested, or persons residing out of the county, the court shall appoint some attorney to represent them,

ney for minors, etc.

will is not con

tested.

[Form No. 19, Appendix.]

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 account ;-for increased security, &c., the positive oath, with facts showing interest, will suffice, and the merits of the claim will not be tried. Burwell v. Shaw, 2 Bradford's R., 322. Cotterell v. Brock, 1 Bradford's R., 148.

A legatee may intervene to oppose proof of a codicil revoking his legacy. Walsh v. Ryan, 1 Bradford's R., 433. And see Beard v. Knox, noted at the end of the chapter.

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 Bradford's Reports, 325.

§ 19. If no person shall appear to contest the probate of Probate where a will, the court may admit it to probate, on the testimony of one of the subscribing witnesses only, if he shall testify, 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.

Party contest

ing will to file

sition.

[Forms No. 20, 21, 23, Appendix.]

See Section 24. post, and cases noted.

§ 20. If any person appears and contests a will, he shall grounds of oppo- file a statement in writing of the grounds of his opposition; Issues of fact when any issue or issues of fact shall be joined in the probate court, respecting the competency of the deceased to make a last will and testament, or respecting the execution by the deceased of such last will and testament under re

how tried.

Issue when deemed joined.

Issues how made up and

strant or undue influence, or fraudulent representations, or for any other cause affecting the validity of such will, such issue or issues shall, at the request of either of the parties interested, be certified immediately to the district court of the proper county, for trial by jury; or may, by consent of the parties, be tried by the probate court. Issue shall be deemed joined by the filing of the grounds of opposition as aforesaid, with the clerk of the probate court. Such issue or issues of fact, shall be made up and tried in the same tried. manner as is or may be provided by law, for the trial of Special verdict issues of fact in other cases; upon determination of such to be rendered. issue or issues of fact, the jury trying the same shall render a special verdict thereon, and the finding of the jury shall be certified by the district court to the probate court, whereupon the probate court shall proceed to admit said will to probate, or not, according to the facts found and the law. (a.)

[Forms No. 24, 25, 26, Appendix.]

Compare sections 294, 295, 296 and 301, post, in regard to the manner of the trial in the district courts of issues of fact joined in the probate courts, &c., and see ante. p. 20.

Proceedings of probate court

thereupon.

ed, all the sub

scribing witness

es to be exam

§ 21. If the will is contested, all the subscribing wit- If will contestnesses who are present in the county, and who are of sound mind, must be produced and examined, and the death, absence, or insanity, of any of them, shall be satisfactorily proved to the court.

It is is not necessary that both witnesses should prove that the provisions of the statute as to the mode of execution, were complied with. Where one witness testified clearly to their performance, and the recollection of the other was vague and indistinct: Held, that the proof of execution was sufficient.— Weir v. Fitzgerald, 2 Bradford's R., 42.

And see the case of Peebles v. Case (where the subscribing witnesses had lost all recollection of the execution of the instrument), noted at the end of the chapter.

§ 22. If none of the subscribing witnesses reside in the county at the time appointed for proving the will, the court may admit the testimony of other witnesses to prove the sanity of the testator, and the execution of the will; and as evidence of the execution, it may admit proof of the

(a.) Amended April 23, 1855. All that portion of the present section, from, and including the words, "when any issue or issues of fact shall be joined," in the third line, to the end, was added by the amendment.

ined.

Proof of will,

Proof by hand- handwriting of the testator, and of the subscribing wit

writing.

Testimony to

nesses, or any of them.

§ 23. The testimony of each witness shall be reduced to writing, and signed by him, and shall be deemed good evibe evidence in dence in any subsequent contests concerning the validity future litigation. of the will, or the sufficiency of the proof thereof, if the

Will and testi

and recorded.

witness be dead, or has permanently removed from this State.

[Latter part of form No. 23, Appendix.]

§ 24. If the court shall be satisfied upon the proof taken, or from the facts found by the jury, that the will was duly executed, and that the testator at the time of the execution was of sound and disposing mind, and not under restraint, undue influence or fraudulent misrepresentation, a certificate of the proof and the facts found, signed by the probate judge and attested by the seal of the court, shall be attached to the will. (a.)

[Forms No. 22, 23, Appendix.]

In case of great physical infirmities, something more than mere formal proof should be required. Additional evidence to show that the mind accompanied the will, and that its provisions were understood, is necessary. This may be supplied by subscribing witnesses or aliunde. Weir v. Fitzgerald, 2 Bradford's R., 42.

Defects of the senses do not incapacitate; but, it appearing that the testator being of advanced age, and his hearing and sight impaired, the circumstances attending the execution of the will should be carefully scrutinized for any Ibid.

traces of imposition or artifice.

And see Mowry v. Silbur, 2 Bradford's R., 133; McSorley v. McSorley, 2 Bradford's R., 188; and McGuire v. Kerr, 2 Bradford's R., 244 ; also, Burger v. Hill, noted at the end of this chapter.

§ 25. The will and the certificate of the proof thereof, mony to be filed together with the testimony which has been taken, shall be filed by the clerk, and recorded by him in a book to be provided for the purpose.

§ 26. The record of the will, and the exemplification by Record to be the clerk in whose custody it may be, shall be received in evidence and be as effectual in all cases as the original would be if proved.

evidence.

§ 27. All wills which shall have been duly proved and

(a.) Amended April 23, 1855. The portions of the section in italics, were added by the amendment. Laws of 1851, p. 450; Compiled Laws, p. 379. Laws 1855, p. 132.

in other State,

ed in this State.

allowed in any other of the United States or in any foreign Wills proved country or State, may be allowed and recorded in the pro- etc., when allow bate court of any county in which the testator shall have left any estate; provided it has been executed in conformity with the laws of this State.

[Form No. 59, Appendix.]

Proceedings upon production

§ 28. When a copy of the will and the probate thereof, duly authenticated, shall be produced by the executor, or of foreign will. by any other person interested in the will, the court shall appoint a time of hearing, and notice shall be given in the same manner as in the case of an original will for probate. [Forms No. 14, 15, Appendix.]

§ 29. If on the hearing it shall appear to the court that Effect of will, the instrument ought to be allowed as the will of the de- if allowed. ceased, a copy shall be filed and recorded, and the will shall have the same force and effect as if it had been originally proved and allowed in the same court.

The probate,

such etc may be con

For

tested with in one year.

§ 30. When a will has been admitted to probate, any person interested, may at any time within one year after probate, contest the same, or the validity of the will. that purpose he shall file in the court before which the will was proved, a petition in writing containing his allegations against the validity of the will, or against the sufficiency of against will, etc. the proof, and praying that the probate may be revoked. [Forms 28 to 30, Appendix.]

See ante Sec. 18, and cases cited, and Sec. 67, post.

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, &c., 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; Bradford's R., 94. And see Weir v. Fitzgerald, noted at the end of this chapter.

Allegations

to be filed.

Citations to be

interested.

§ 31. Upon the filing of the petition, a citation shall be issued to the executors who have taken upon them the execution of the will, or to the administrators, with the will issued to parties annexed, and to all the legatees named in the will, residing in the State, or to their guardians, if any of them are minors, or their personal representatives, if any of them are