any other competent person administrator, unless good cause for delay is shown.

SEC. 12. If it is alleged in any petition that any will is in the possession of a third person, and the court is satisfied 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.

SEC. 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.

SEC. 14. Copies of the notice of the time appointed for the probate of the will must be addressed to the heirs of the testator resident in the territory, at their places of residence, if known to the petitioner, and deposited in the post office, with the postage thereon paid, at least ten days before the hearing. If their and on whom

pre

places of residence be not known, the copies of notice may be addressed to them and deposited in the post office at the county seat of the county where the proceedings are pending. A copy of the same notice must in

Notice - how addressed

served.

Powers of

probate judge

at chambers

concerning wills.

Proof of ser

vice of notice

like manner be mailed to the person named as executor, if he be not the petitioner; also, to any person named as co-executor, not petitioning, if their places of residence be known. Proof of mailing the copies of the notice must be made at the hearing. Personal service of copies of the notice at least ten days before the day of the hearing is equivalent to mailing.

SEC. 15. 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 appoint special terms of his court for hearing the petitions, trials of issues, and admitting wills to probate.

SEC. 16. At the time appointed for the hearing, or the time to which the hearing may have been postponed, to probate the court, unless the parties appear, must require proof that the notice has been given, which being made, the court must hear testimony in proof of the will.

will.

contest will.

SEC. 17. Any person interested may appear and contest the will. Devisees, legatees, or heirs of an estate may contest the will through their guardians, or attorneys appointed by themselves or by the court for that Who may purpose; but a contest made by an attorney appointed by the court does not bar a contest after probate by the party so represented, if commenced within the time provided in Article IV. of this chapter; nor does the non-appointment of an attorney by the court of itself invalidate the probate of a will.

If will not

SEC. 18. If no person appears to contest the probate of a will, the court may admit it to probate on the testicontested, mony 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.

same may be probated.

Olographic will may be probated.

SEC. 19. An olographic will may be proved in the same manner that other writings are proved.

ARTICLE II.- Contesting Probate of Wills.

to contest

SEC. 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 to any of the grounds of demurrer provided for in the civil practice act of this territory applicable hereto. 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 Proceeding otherwise obviating or avoiding the objections. Any issues of fact thus raised, involving: 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 substantial grounds 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.

will.

manded. court to summon.

SEC. 21. When a jury is demanded, the probate If jury decourt must summon and impanel a jury to try the case in the manner provided for summoning and impaneling trial juries in courts of record, and the trial must be conducted in accordance with the provisions of the civil How trial practice act for trials of issues of fact. A trial by the court must be conducted as provided in said civil practice act in cases of trials by the court.

conducted.

SEC. 22. The jury, after hearing the case, must return a special verdict upon the issues submitted to them Verdict of by the court; upon which the judgment of the court

jury.

Production

and examin

ation of wit

nesses in case

will contested.

When testi

mony of wit

subsequent

contest.

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.

SEC. 23. 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.

SEC. 24. The testimony of each witness, reduced to writing and signed by him, shall be good evidence in

ness used 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 the territory. SEC. 25. If the court is 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 its execution, was of sound and disposing mind, and not acting under duress, menace, fraud, or undue influence, a certificate of the proof and the facts found, signed by the probate judge, and attested by the seal of the court, must be attached to the will.

Certificate of proof of will

attached to

will.

Certificate of

proof and

will filed and

recorded.

Will proved

out of territory may be allowed and recorded in

SEC. 26. The will and a certificate of the proof thereof, together with all the testimony taken, must be filed by the clerk, and recorded by him in a book to be provided for the purpose.

ARTICLE III.- Probate of Foreign Wills.

SEC. 27. Every will duly proved and allowed in any proper coun- other state or territory of the United States, or in any foreign country or state, may be allowed and recorded in

ty in

tory.

terri

the probate court of any county in which the testator shall have left any estate.

SEC. 28. When a copy of the will and the probate thereof, duly authenticated, shall be produced by the executor, or by any other person interested in the will, with a petition for letters, the same must be filed, and the court or judge must appoint a time for the hearing; notice whereof must be given, as hereinbefore provided for an original petition for the probate of a will.

Force and ef

fect of wills

made and duly probated and allowed

SEC. 29. If, on the hearing, it appears upon the face of the record that the will has been proved, allowed, and admitted to probate, in any other state or territory of the United States, or in any foreign country, and that it was executed according to the law of the place in which the same was made, or in which the testator was at the time domiciled, or in conformity with the laws of this territory. tory, it must be admitted to probate, and have the same force and effect as a will admitted to probate in this territory, and letters testamentary, or of administration, issued thereon.

ARTICLE IV.- Contesting Wills after Probate. SEC. 30. When a will has been admitted to probate, any person interested may, at any time within one year after such probate, contest the same, or the validity of the will. For that purpose he must file in the court in which the will was proved a petition, in writing, containing his allegations against the validity of the will, or against the sufficiency of the proof, and praying that the probate may be revoked.

SEC. 31. Upon filing the petition a citation must be issued to the executors of the will, or to the administrators, with the will annexed, and to all the legatees and devisees mentioned in the will, and heirs residing in the territory, so far as known to the petitioner-or to their guardians, if any of them are minors; or to their personal representatives, if any of them are dead-requiring them to appear before the court, on some day of a

out of terri