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. [Forms No. 12, 46 and 51, Appendix.] $ 32. At the time appointed for showing cause, or at any The hearing. time to which the hearing shall be continued, personal service of the citations having been made upon any person named therein, the court shall proceed to hear the proofs of The court to the parties. If any devisees or legatees named in the will appoint attorney shall be minors and have no guardians, the court shall appoint some attorney to represent them. for minor devisees, etc. revoked. [Form No. 19, Appendix.] § 33. If, upon hearing of the proof of the parties, the Probate, when court shall decide that the will is for any reason invalid, or that it is not sufficiently proved to have been the last will of the testator, the probate shall be annulled and revoked. [Form No. 30, Appendix.] § 34. Upon the revocation being made, the powers of the Liability of ex- executor or administrator, with the will annexed, shall cease; but such executor or administrator shall not be liable for any act done in good faith previous to the revocation. ecutor, etc., for acts previous to revocation. Fees and expenses, by whom paid. Probate, when conclusive. Lost or de stroyed will. § 35. The fees and expenses shall be paid by the party contesting the validity of the will or the probate, if the will or probate be confirmed. If the probate be revoked, the party who shall have resisted the revocation, shall pay the costs and expenses of the proceedings out of the property of the deceased. [Form No. 30, Appendix.] § 36. If no person shall, within one year after the probate, contest the same, or the validity of a will, the probate of the will shall be conclusive; saving to infants, married women, and persons of unsound mind, a like period of one year, after their respective disabilities are removed. § 37. Whenever any will shall be lost or destroyed by accident or design, the probate court shall have power to take proof of the execution and validity of the will, and to establish the same notice, to all persons interested, having been first given as prescribed in regard to proofs of wills in other cases. All the testimony given shall be reduced to writing, and signed by the witnesses. [Form No. 10, Appendix.] § 38. No will shall be allowed to be proved as a lost or destroyed will, unless the same shall be proved to have been in existence at the time of the death of the testator, or be shown to have been fraudulently destroyed in the life time of the testator, nor unless its provisions shall be clearly and distinctly proved by at least two credible witnesses. [Form No. 10, Appendix.] A will cannot be proved as a lost or destroyed will, unless it is shown to have been in existence at the death of the testator, or to have been fraudulently (or accidentally) destroyed in his life time. And when the will is last traced to the possession of the testator, and on his decease cannot be found after proper inquiry and examination, the presumption is that it was destroyed by the testator, animo revocandi. Buckley v. Redmond 2 Bradford's R., 282. And see Holland v. Ferris, 2 Bradford's R., 334. Must have been time of death, in existence at etc. must be proved by two witnesses. Provisions of fied by probate judge. § 39. When any will shall be established, the provisions thereof shall be distinctly stated and certified by the probate will to be certi judge, under his hand and the seal of his court; and the certificate, together with the testimony upon which it is founded, shall be recorded as other wills are required to be recorded, and letters testamentary or of administration with the will testimony to be annexed, shall be issued thereon, in the same manner as upon wills produced and duly proved. [Form No. 10, Appendix.] Certificate and recorded, &c. Power of court ministrator or executor appoinring pendency ted before or du § 40. If, before or during the pendency of an application to prove a lost or destroyed will, letters of administration to restrain adbe granted on the estate of the testator, or letters testamentary of any previous will of the testator be granted, the court shall have authority to 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. Cases bearing upon the general subject of the preceding division of the statute: Wills under the Spanish and Mexican law, and questions arising upon the probate of the will of a Mexican citizen of California, executed September, 1856, considered and discussed. Panaud v. Jones, 1 Cal., 488. 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. Ib. 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 of application to prove lost or de stroyed will. lands devised therein in trust for a devisee, and without having any interest himself therein. Peralta v. Castro, 6 Cal., 354. If a will be properly proved, it is the duty of the surrogate to admit it to probate without inquiring as to its effect or construction, except so far as may be necessary to determine which is the last will, when there are several instruments inconsistent with each other. Van Wert v. Benedict, 1 Bradford's R., 114. Though there can be but one last will, yet several papers, taken together, may constitute the last will. Ib. Although a will has been admitted to probate, a legatee under a later will may propound the latter for probate; and is not 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 Bradford's R., 42. See syllabus of same case, noted under sections 21 and 24, ante. If the will is attested by strangers, evidence of the signature and handwriting of the testator, may be resorted to for the purpose of showing his identity with the party executing the will. Mory v. Silbur, 2 Bradford's R., 133. If the subscribing witnesses have lost all recollection of the execution of the will, yet if the court be satisfied by other evidence that they witnessed the execution of the will, it may be admitted to probate. The same rules of evidence apply to the proof of wills, as in other judicial investigations; and the making of the will " may be proved in the the very teeth of the subscribing witnesses," who may be contradicted in like manner as other witnesses. Having obtained jurisdiction, the surrogate must dispose of the matter according to the established rules of evidence. Peebles v. Case, 2 Bradford's R., 226. Proof of incapacity from attacks of delirium tremens, receives additional effect from the circumstance of the will being an unequal one. Waters v. Cullen, 2 Bradford's R., 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 Bradford's R., 360. When on the probate of a will an alleged codicil is brought in by parties interested, but not cited, the proper course is to direct them to file an allegation propounding it for proof as part of the pending proceedings. Carle v. Underhill, 3 Bradford's R., 101. The prevention of the execution of a codicil by improper means, cannot operate to invalidate the will. A will can only be revoked in the manner and form prescribed by statute. Leaycraft v. Simmons, 3 Bradford's R., 35. And where a testator desired to make a codicil to his will in favor of his daughter; and his son, who had custody of the will, and in whose favor it was made, refused to produce the will at the request of testator for the purpose of alteration: Held, that the will was not thereby rendered invalid. Ib. Whether a paper is a will or not, does not depend upon the maker declaring it to be a will, but upon its contents. Carle v. Underhill, 3 Bradford's R., 101. An executor has no authority until Brayt. R., 99. the will is proved. Tucker v. Starks, 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. Denison v. Ingram, Dallam's Texas Digest, p. 519. CHAPTER III. LETTERS TESTAMENTARY AND OF ADMINISTRATION, AND BONDS To whom let upon probate of § 41. When any will shall have been proved and allowed, ters to issue the probate court shall issue letters thereon, to the persons will. named in the will as executors, who are competent to discharge the trust, and who shall appear and qualify. Who incompetent to serve as $42. No person shall be deemed competent to serve as executor who, at the time the will is proved, shall be: 1st., executors. under the age of twenty-one years; or, 2d., who shall have been convicted of an infamous crime; or, 3d., who, upon proof, shall be adjudged by the court incompetent to execute the duties of the trust by reason of drunkenness, improvidence, or want of understanding. If any such person ed, when to isbe named as the sole executor in any will, or if all the persons named as executors are incompetent, letters of administration with the will annexed, shall be issued. Compare Sec. 55, post, and cases there cited. A person decreed to be a habitual drunkard, is not, by such decree, deprived of his power to perform the duties of the office of executor. Sill v. McKnight, 7 Watts & Serg., 244. The person entitled to a preference in administration, cannot be excluded from his right except in the cases enumerated by statute. No degree of legal or moral guilt or delinquency will warrant such exclusion short of conviction of an infamous crime. Harrison v. McMahan, 1 Bradford's R., 283. The single fact that the applicant is a professional gambler, is not of itself enough to debar him from the precedence secured him by statute. Ib. Letters of administration with will annex sue. Objections to may § 43. Any person interested in a will may file objections executor in writing to the granting of letters testamentary to the byterested. (a.) See cases noted at the end of the chapter. Effect of marriage of an executrix. executor not to administer, etc. tor. persons named as executors, or any of them, and the objections shall be heard and determined by the court. [Form No. 31, Appendix.] See Sec. 18, ante, and cases there cited. § 44. When an unmarried woman, who shall have been appointed executrix, shall marry, her marriage shall extinguish her authority. See Sec. 56, post. $45. No executor of an executor shall, as such, be authoExecutor of rized to administer upon the estate of the first testator, but on the death of the sole or surviving executor of any last will, letters of administration with the will annexed, of the estate of the first testator left unadministered, shall be issued. When minor § 46. When a person under the age of twenty-one years shall be named executor, letters of administration with the is named execu will annexed, shall be granted during the minority of the executor, unless there is another executor who shall accept the trust and qualify; in which case the executor who shall accept the trust and qualify, shall have letters testamentary, and shall administer the estate until the minnor shall arrive at full age, when he may be admitted as joint executor. When all the executors named, are not appointed. § 47. When all the executors named shall not be appointed by the court, such as are appointed, shall have the same authority to perform every act, and discharge every trust required by the will, and their acts shall be as effectual for every purpose, as if all were appointed and should act together. As to the powers, etc., of executors, see chapter vm., post. $48. Administrators with the will annexed, shall have An the same authority as the executor named in the will would have had, and their acts shall be as effectual for every purpose. administrators with will annexed. In general, the term "administrators" in the statutes relative to the estates of deceased persons, includes "administrators with the will annexed," and the latter are subject to all the provisions applicable to administrators generally, except so far as the distribution of the estate is directed by the will. Ex-parte, Brown, 2 Bradford's R., p. 22. § 49. Letters testamentary and of administration with the |