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Stat. 1851, 449. read: "§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, or if not, by notices in writing, posted in three public places in the county."

§ 16 of stat. 1851, 450, real: "The court shall also direct subpoenas to be issued to the subscribing witnesses to the will, if they reside in the county.'

Stat. 1861, 629, read: “shall" for "may."

19 Cal. 162; 22 Cal. 16, 337; 36 Cal. 438; 39 Cal. 554.

1304. (ó§ 14, 15.) The heirs of the testator, resident in the county or state, must have written or printed copies of the notice of the time fixed for the probate of the will, addressed to them at their places of residence postage paid, and placed in the post office by the petitioner, at the date of the first publication; the notice must be isued by the clerk, official seal. Proof of mailing the notice mnst be made at the hearing; the same notice and proof of service thereof on the person named as executor must be made, if he be not the petitioner; also, on any person named as co-executor, not petitioning.

Stat. 1851, 450, read: 8 14. If the heirs of the testator reside in the county, the court shall also direct citations to be issued and served upon them to appear and contest the probate of the will at the time appointed." " 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 shall also be issued and served upon such person or persons, if resident within the county."

14 Cal. 103.

$ 1305. (6 12.) The probate judge may, out of term time or at chambers, receive petitions for the probate of wills, and make and issue all necessary orders and writs to enforce the production of wills and the attendance of witnesses, and may ap point special terms of his court for hearing the petitions, trials of issues, and admitting wills to probate.

Stat. 1861, 629, was the same in substance, substituting the words, "of any such application," for the words following "hearing" in the last two lines.

Stat. 1851, 449, omitted all after "witnesses." § 1306. (§ 17.) At the time appointed for, or to which the hearing may have been postponed, the court must require proof, by affidavit, that the notices herein before required have been personally served or mailed and published, which being made, the court must hear testimony in proof of the will. If such

notice is not proved to have been given, or if from any other cause it is necessary, the hearing may be postponed to a day certain, and notice to absentees given thereof, as original notice is required to be given. The appearance in court of parties

interested is a waiver of notice.

Stat. 1861, 629, real: "At the time appointed, or at any time to which the hearing may be continued, upon proof being made by affidavit or otherwise, to the satisfaction of the court, that notice has been given as required in the preceding sections, the court shall proceed to hear the testimony in proof of the will."

Stat. 1851, 450, omitted from stat. 1861, the italicized words.

Ó 1307. (§ 18.) Any person interested may appear and contest the will. Devisees, legatzes, heirs or creditors of an estate may contest the will through their guardians, or attorneys appointed by themselves or by the court for that purpose; but a contest made by an attorney appointed by the conrt does not bar a contest after probate, by the party so represented, if commenced within the time provided in article four of this chapter; nor does the non appointment of an attorney by the court of itself invalidate the probate of a will.

Stat. 1961, 630, substituted for the italicised words, the following: "If it appears that there are minors, or persons residing out of the county, who are interested in the estate, the court shall appoint some attorney to represent them."

Stat. 1851, 450, was same as stat. 1861, omitting the words, “in the estate.'

5 Cal. 432; 6 Cal. 158; 20 Cal. 264; 34 Cal. 687; 35 Cal. 510; 36 Cal. 506. § 1308. (§ 19.) If no person appears to contest the probate of a will, the court may admit it to probate on the testimony of one of the subscribing witnesses only, if he testifies 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.

§ 1309. An olographic will may be proved in the same manner that other private writings are proved.

ARTICLE II.

CONTESTING PROBATE OF WILLS.

SECTION 1312. Contestant to file grounds of contest, and petitioner

1313.

to reply.

How jury obtained and trial haά.

1314. Verdict of the jury. Judgment. Appeal.

1315. Witnesses, who and how many to be examined. Proof of handwriting admitted, when.

1316. Testimony reduced to writing for future evidence. 1317. If proved, certificate to be attached.

1318. Will and proof to be filed and recorded.

Ó 1312. (§ 20.) If any one appears to contest the will, he must file written grounds of opposition to the probate thereof; and serve a copy on the petitioner and other residents of the county interested in the estate, any one or more of whom may demur thereto upon any of the grounds of demurrer provided for in part two, title six, chapter three of this code. If the demurrer is sustained, the court must allow the contestant a reasonable time, not exceeding ten days, within which to amend his written opposition. If the demurrer is overruled, the petitioner and others interested may jointly or separately answer the contestant's grounds, traversing or otherwise obviating or avoiding the objections. Any issues of fact thus raised, in

volving

1. The competency of the decedent to make a last will and

testament.

2. The freedom of the decedent at the time of the execution of the will from duress, menace, fraud or undue influence.

3. The due execution and attestation of the will by the decedent or subscribing witnesses; or,

4. Any other questions substantially affecting the validity of the will-

Must, on request of either party in writing, (filed three days prior to the day set for the hearing) be tried by a jury. If no jury is demanded, the court must try and determine the issues

joined. On the trial, the contestant is plaintiff and the petitioner is defendant.

Stat. 1867-8, 628, read: "If any person appear and contest the will, he shall file a statement, in writing, of the grounds of his [or her] opposition. When any issue or issues of fact shall be joined in the probate courts, 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 restraint or undue influence or fraudulent representation, or for any other cause affecting the validity of such will, such issue or issues shall, at the request in writing of either of the parties interested, [be tried by a jury, to be impanneled by the probate court, as hereinafter provided; and if a jury trial be not demanded, as in this section provided, the said issues shall be tried and determined by the probate court. When a jury trial shall be demanded, a request in writing therefor shall be filed with the clerk of the probate court at least three days before the day set for the trial of the issues in the probate court. Issue shall be deemed joined by the filing of the grounds of opposition, as afore. said, with the clerk of the probate court. Such issue or issues of fact shall be made up and tried in the same manner as is or may be provided by law for the trial of issues of fact in other cases; and upon determination of such issue or issues of fact, the jury trying the same shall render a special verdict thereon. And whenever a trial by jury of any issue of fact joined in the probate court in the manner provided in this act, shall be demanded in writing, as in this section provided, it shall be the duty of the probate court to cause to be summoned and impanneled a jury for the trial of such issue or issues of fact. Such jury shall be summoned and impanneled by the probate court in the same manner as is provided for by law for summoning and impanneling trial juries in the county courts of this state for the trial of civil actions, for the trial of such issues or issue of fact, and at such time as the court shall direct. The trial shall be had as in other civil cases; and upon determining such issue or issues of fact, the jury trying the same shall render a special verdict upon each of the issues submitted to them; and the probate court shall proceed to admit said will to probate, or not, according to the facts found and the law; and a new trial may be had, and also appeal taken from such trial, verdict and judgment, as in other civil cases; and the act regulating proceedings in civil cases in the courts of justice in this state, when not inconsistent with or repugnant to the provisions of this act, shall be applicable to and govern the practice on trials of issue of fact by jury in the probate court, provided for in this act.]"

Stat. 1861, 630, was the same as stat. 1867, substituting for the words in brackets, the following: "certified immediately to the district court of the proper county, for trial by jury, otherwise the same shall be tried by the probate court. Such request in writing shall be filed at least three days before any day set for the trial of the issue in 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 manner as is, or may be, provided by law for the trial of issues of fact in other cases. Upon determination of such 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."

Stat. 1855, 132, was same as stat. 1861, omitting the words, "in writing after "request"; also substituting, "or may, by consent of the parties," for the words, "otherwise the same shall."

Stat. 1851, 450, read: "If any person appears and contests a will, he shall file a statement of the grounds of his opposition.'

Ø 1313.

(§ 20.) When a jury is demanded, the probate

court must summons and impannel a jury to try the case, in the manner provided for summoning and impanneling trial juries in courts of record, and the trial must be conducted in accordance with the provisions of part two, title eight, chapter four of this code. A trial by the court must be conducted as provided in part two, title eight, chapter five of this code.

Vide § 1312 and note. 34 Cal. 687; 35 Cal. 510

Ó 1314. (§ 20.) The jury, after hearing the case, must return a special verdict upon the issues submitted to them by the court; upon which the judgment of the court must be rendered, either admitting the will to probate or rejecting it. In either case, the proofs of the subscribing witnesses must be reduced to writing. If the will is admitted to probate, the judgment, will and proofs must be recorded.

Vide § 1312 and note. Also § 1313.

§ 23. Stat. 1851, 450, read: "The testimony of each witness shall be reduced to writing, and signed by him, and shall be deemed good evidence in any subsequent contests concerning the validity of the will, or the sufficiency of the proof thereof, if the witness be dead, or has permanently removed from this State."

5 Cal. 432; 10 Cal. 500; 22 Cai. 70.

§ 1315. (§§ 21, 22.) If the will is contested, all the subscribing witnesses 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 must be satisfactorily shown to the court. 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 handwriting of the testator and of the subscribing witnesses, or any of them.

10 Cal. 478.

§ 1316. (§ 23.) The testimony of each witness, reduced to writing and signed by him, shall be good evidence in any subsequent contests concerning the validity of the will, or the sufficiency of the proof thereof, if the witness be dead, or has perma nently removed from this state.

Vide note to § 1314.

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