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TITLE XI.

OF PROCEEDINGS IN PROBATE COURT.

CHAPTER I. OF JURISDICTION.

II. OF THE PROBATE OF WILLS.

III.

OF EXECUTORS AND ADMINISTRATORS, THEIR LET-
TERS, BONDS, REMOVALS AND SUSPENSIONS.
IV. OF THE INVENTORY AND COLLECTION OF THE EF-
FECTS OF DECEDENTS.

V. OF THE PROVISIONS FOR SUPPORT OF FAMILY, AND
OF THE HOMESTEAD.

VI. OF CLAIMS AGAINST THE ESTATE.

VII. OF SALES AND CONVEYANCE OF PROPERTY ΤΟ

DECEDENTS.

VIII. OF THE POWERS AND DUTIES OF EXECUTORS AND
ADMINISTRATORS, AND OF THE MANAGEMENT

OF ESTATES.

IX. OF THE CONVEYANCE OF REAL ESTATE BY EX-
ECUTORS AND ADMINISTRATORS IN CERTAIN
CASES.

X. OF ACCOUNTS RENDERED BY EXECUTORS AND AD-
MINISTRATORS, AND OF THE PAYMENT OF

DEBTS.

XI. OF THE PARTITION, DISTRIBUTION AND FINAL

SETTLEMENT OF ESTATES.

XII. OF ORDERS, DECREES, PROCESS, MINUTES, REC

ORDS AND APPEALS.

XIII. OF PUBLIC ADMINISTRATOR.

XIV. OF GUARDIAN AND WARD.

CHAPTER I.

OF JURISDICTION.

SECTION 1294. Jurisdiction of Probate Court over the estate, when exercised.

1295. When jurisdiction decided by first application.

(§ 2.)

§ 1294. Wills must be proved, and letters testamentary or of administration granted-

1. In the county of which the decedent was a resident at the time of his death, in whatever place he may have died.

2. In the county in which the decedent may have died, leaving estate therein, he not being a resident of the state.

3. In the county in which any part of the estate may be, the decedent having died out of the state and not a resident thereof at the time of his death.

4. In the county in which any part of the estate may be, the decedent not being a resident of the state and not leaving estate in the county in which he died.

5. In all other cases, in the county where application for letters shall first be made.

Stat. 1861, 628, inserted, in subdivision 1, the words, "or immediately previous to" between "at" and "the time of."

Stat. 1851, 448, omitted subdivisions 4 and 5.

4 Cal. 362; 5 Cal. 58, 230, 432; 6 Cal. 621, 666; 7 Cal. 215; 10 Cal. 110,495; 12 Cal. 433; 15 Cal. 220; 17 Cal. 233; 23 Cal. 427; 24 Cal. 187.

§ 1295. (§ 3.) When the estate of the decedent is in more than one county, he having died out of the state, and not having been a resident thereof at the time of his death, or being such non-resident and dying within the state and not leaving estate in the county where he died, the probate court of that county in which application is first made for letters testamentary or of administration has exclusive jurisdiction of the settlement of the estate.

Stat. 1851, 448, omitted the words, "or being such non-resident and dying within the state, and not leaving estate in the county where he died.

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Stat. 1861, 628, omitted the words, " or of administration."

Stat. 1863-4, 367, same as § 1295. 39 Cal. 554.

CHAPTER II.

OF THE PROBATE OF WILLS.

ARTICLE I. PETITION, NOTICE AND PROOF.
II. CONTESTING PROBATE OF WILL.
III. PROBATE OF FOREIGN WILLS.

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SECTION 1298. Custodian of will to deliver same, to whom Penalty. 1299. Who may petition for probate of will.

1300. Contents of petition.

1301. When executor forfeits right to letters.

1302. Will to accompany petition, or its presentation prayed for and how enforced.

1303. Notice of petition for probate, how given.

1304. Heirs and named executors to be notified, how.

1305. Petition may be presented to judge at chambers, and

what judge may do.

1306. Hearing proof of will after proof of service of notice. 1307. Who may appear and contest the will.

1308. Probate, when no contest.

1309. Olographic wills.

1298.

(4.) Every custodian ot a will, within thirtydays after receipt of information that the maker thereof is dead, must deliver the same to the probate court having jurisdiction of the estate, or to the executor named therein. A failure to comply with the provisions of this section makes the person failing responsible for all damages sustained by any one injured thereby.

Stat. 1851, 449, same in substance, omitting italicized words. 22 Cal. 397.

C. C. P.-36

§ 1299.

(§§ 5, 9.) Any executor, devisee or legatee named in any will, or any other person interested in the estate, may, at any time after the death of the testator, petition the court having jurisdiction to have the will proved, whether the same be in writing, in his possession or not, or is lost or destroyed, or beyond the jurisdiction of the state, or a nuncupative will.

Stat. 1951, 449, read: § 5. "Any person named as executor in any will, shall, within thirty days after the death of the testator, or within thirty days after he has knowledge that he is named executor, present the will, if in his possession, to the probate court which has jurisdiction."

§ 9. Any person having an interest in the will may in like manner present a petition praying that it may be required to be produced, and admitted to probate."

Stat. 1851, 449, § 7, contained substance of italicized words.

22 Cal. 66, 397.

§ 1300. show

(§ 6.) A petition for the probate of a will must

1. The jurisdictional facts.

2. Whether the person named as executor consents to act, or renounces his right to letters testamentary.

3. The names, ages and residence of the beirs and devisees of the decedent.

4. The probable value and character of the property of the

estate.

5. The name of the person for whom letters testamentary are prayed.

No defect of form or in the statement of jurisdictional facts actually existing shall make void the probate of a will.

Stat. 1861, 629, read: "If he intends to decline the trust, he shall, at the same time, file his renunciation in writing. If he shall neglect for ten days to file his renunciation, such neglect shall be equivalent to a renunciation, unless for cause shown, the probate court, or judge, shall extend the time; if he intends to accept, he shall present with the will a petition, setting forth the facts necessary to give jurisdiction, and when the same is known to the petitioner, the names, ages and residence of the heirs and devisees of the deceased, and the probable value and character of the property of the estate, and praying that the will be admitted to probate, and that letters testamentary be issued to him. If the jurisdictional facts existed, but are not fully set forth in the petition, and the same shall be afterwards proved in the course of the administration, the probate of the will and the subsequent proceedings shall not, on account of such want of jurisdictional averments, be held void."

Stat. 1851, 449, read: "If he intends to decline the trust, he shall at the same time file his renunciation in writing; if he intends to accept, he shall present with the will a petition praying that the will be admitted to probate, and that letters testamentary be issued to him."

19 Cal. 188; 22 Cal. 66, 397.

§ 1301. (§ 5.) If the person named in a will as executor, for thirty days after he has knowledge of the death of the testator, and that he is named as executor, fails to petition the proper court for the probate of the will and that letters testamentary be issued to him, he may be held to have renounced his right to letters, and the court may appoint any other competent person ad. ministrator unless good cause for delay is shown.

Vide § 1299, supra, note, for § 5, stat. 1851. 22 Cal. 397.

§ 1302. (§§ 10, 11.) If it is alleged in any petition that any will is in the possession of a third person, and the court is satis fied that the allegation is correct, an order must be issued and served upon the person having possession of the will, requiring him to produce it at a time named in the order. 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 produces it.

§ 1303. (§ 13.) When the petition is filed and the will produced, the probate judge must fix a day for hearing the petition, not less than ten nor more than thirty days from the production of the will. Notice of the hearing shall be given by the clerk of the court, by publishing the same in a newspaper of the county; if there be none, then by three written or printed notices posted at three of the most public places in the county. If the notice is published in a weekly newspaper, it must appear therein on at least three different days of publication, and if in a newspaper published oftener than once a week, it shall be so published that there must be at least ten days from the first to the last day of publication, both the first and the last day being included. If the notice is by posting, it must be given at least ten days before the hearing.

Stat. 1865-6, 765, read: "§ 13. When any will shall have come into the possession of the probate court, and a petition for the probate thereof and for the issuance of letters testamentary or letters of administration, with the will annexed, shall have been filed, the court or judge 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 the clerk by publication in some newspaper, if there is one printed in the county, if not, by notices posted in three public places in the county," &c., to the end.

Stat. 1861, 629, contained only the part of stat. 1865-6, given above.

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