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Issues of fact

regular term therein specified, to show cause why the probate of the will should not be revoked.

SEC. 32. At the time appointed for showing cause, or at any time to which the hearing is postponed, pertried as in sonal service of the citations having been made upon any persons named therein, the court must proceed to try the issues of fact joined in the same manner as in an original contest of a will.

original con

test.

When trial by

jury to be had

on petition to

revoke pro

bate of will.

SEC. 33. In all cases of petitions to revoke the probate of a will, wherein the original probate was granted without a contest, on written demand of either party, filed three days prior to the hearing, a trial by jury must be had, as in cases of the contest of an original petition. to admit a will to probate. If, upon hearing the proofs of the parties, the jury shall find, or, if no jury is had, shall revoke the court shall decide, that the will is for any reason in

When court

probate of

will.

will revoked

valid, or that it is not sufficiently proved to be the last will of the testator, the probate must be annulled and revoked.

SEC. 34. Upon the revocation being made the powers If probate of of the executor or administrator, with the will annexed, must cease; but such executor or administrator shall not ministrator be liable for any act done in good faith previous to the

powers of ex

ecutor or ad

revoked.

revocation.

SEC. 35. The fees and expenses must be paid by the party contesting the validity or probate of the will, if Costs on peti- the will in probate be confirmed. If the probate is revoked, the costs must be paid by the party who resisted the revocation, or out of the property of the decedent, as the court directs.

tion to revoke

SEC. 36. If no person, within one year after the probate of a will, contest the will or the validity thereof, Limitation as the probate of the will is conclusive; saving to infants, and persons persons of unsound mind, a like period of one year after their respective disabilities are removed.

to contest of will.

ARTICLE V.— Probate of Lost or Destroyed Will.

SEC. 37. Whenever any will is lost or destroyed, the probate court must take proof of the execution and validity thereof, and establish the same; notice to all persons interested being first given, as prescribed in regard to proofs of wills in other cases. All the testimony given must be reduced to writing, and signed by the witnesses.

SEC. 38. No will shall be proved as a lost or destroyed will, unless the same is proved to have been in existence at the time of the death of the testator, or is shown to have been fraudulently destroyed in the life time of the testator; nor unless its provisions are clearly and distinctly proved by at least two credible witnesses. SEC. 39. When a lost will is established, the provisions thereof must be distinctly stated and certified by the probate judge, under his hand and the seal of the court; and the certificate, together with the testimony upon which it is founded, must be filed and recorded as other wills are filed and recorded; and letters testamentary or of administration, with the will annexed, must be issued thereon, in the same manner as upon will produced and duly proved. The testimony must be reduced to writing, signed, certified, and filed as in other cases, and shall have the same effect as evidence, as provided in section 20 of this act.

SEC. 40. If, before or during the pendency of an application to prove a lost or destroyed will, letters of administration are granted on the estate of the testator, or letters testamentary of any previous will of the testator are granted, the court may 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.

ARTICLE VI.-Probate of Nuncupative Wills. SEC. 41. Nuncupative wills may, at any time within six months after the testamentary words are spoken by

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Petition to

the decedent, be admitted to probate on petition and notice as provided in Article I., Chaper II., of this act. The petition, in addition to the jurisdictional facts, must prove nuncu allege that the testamentary words, or the substance thereof, were reduced to writing within thirty days after they were spoken, which writing must accompany the petition.

pative will.

When probate

court may en

tertain peti

tion to probate nuncupative will.

Contest of

SEC. 42. The probate court must not receive or entertain a petition for the probate of a nuncupative will until the lapse of fourteen days from the death of the testator, nor must such petition at any time be acted on until the testamentary words are, or their substance is, reduced to writing and filed with the petition, nor until the surviving husband or wife (if any) and all the other persons, resident in the territory or county, interested in the estate, are notified as hereinbefore provided.

SEC. 43. Contests of the probate of nuncupative wills, and appointments of executors and administrators nuncu pative of the estate devised thereby, must be had, conducted, and made as hereinbefore provided in cases of the probate of written wills.

will.

Court to issue letters to executor.

Executor qualify.

CHAPTER III.

ARTICLE I.-Letters Testamentary and of Administration How and to Whom Issued.

SEC. 44. The court admitting a will to probate, after the same is proved and allowed, must issue letters thereon to the persons named therein as executors, who are competent to discharge the trust, who must appear and to qualify, unless objection is made, as provided in section 41 of this act.

Persons who shall not act as executors.

SEC. 45. No person is competent to serve as executor who, at the time the will is admitted to probate, is: First. Under the age of majority.

Second.

Convicted of an infamous crime.

Third. Adjudged by the court incompetent to execute the duties of the trust by reason of drunkenness

improvidence, or want of understanding or integrity, or who is absent from or resides out of the territory.

If the sole executor, or all the executors, are incompetent, or renounce or fail to apply for letters, or to appear and qualify, letters of administration with the will annexed must be issued.

SEC. 46. Any person interested in a will may file objections in writing to granting letters testamentary to the persons named as executors, or any of them, and the objections must be heard and determined by the court. petition may at the same time be filed for letters of administration with the will annexed.

A

SEC. 47. When an unmarried woman, appointed executrix, marries, her authority is extinguished. When a married woman is named as executrix, she may be appointed and serve in every respect as a feme sole.

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letters de bonis non, where decedent was

SEC. 48. No executor of an executor shall, as such, be authorized to administer on the estate of the first Concerning testator, but on the death of the sole or surviving executor of any last will, letters of administration with an executor. the will annexed, of the estate of the first testator left unadministered, must be issued.

SEC. 49. Where a person absent from the territory, or a minor, is named executor, if there is another executor who accepts the trust and qualifies, the latter may have letters testamentary and administer the estate until the return of the absentee, or the majority of the minors, who may then be admitted a joint executor. If there is no other executor, letters of administration with the will annexed must be granted, but the court may, in its discretion, revoke them on the return of the absent executor or the arrival of the minor at the age of majority.

In case exec

utor is absent

from territory

or a minor.

If all the executors named

SEC. 50. When all the executors named are not appointed by the court, those appointed have the same authority to perform all acts and discharge the trust required in will not by the will as effectually for every purpose as if all were appointed and should act together. Where there are two executors or administrators, the act of one alone shall be

appointed. those appointed sufficient.

effectual if the other is absent from the territory, or laboring under any legal disability from serving, or if he has Where act of given his co-executors or co-administrators authority, in writing, to act for both; and where there are more than two executors or administrators, the act of the majority shall be valid.

majority valid.

Administra

tor with will

annexed has

same

SEC. 51. Administrators with the will annexed have the same authority over the estates which executors named power in the will would have, and their acts are as effectual for Authentica all purposes. Their letters must be signed by the clerk tion of letters. of the court, and bear the seal of the court.

as executor.

ARTICLE II.— Form of Letters.

SEC. 52. Letters testamentary must be substantially in the following form:

"Territory of Montana, County of

:

"The last will of A B, deceased, a copy of which is

Form of let hereto annexed, having been proved and recorded in the

ters testa

mentary.

probate court of the county of

therein, is hereby appointed executor.

CD, who is named

"Witness, G H, clerk of said county, with the seal of

said court affixed, this the

"By order of the court.

[L. s.]

SEC. 53.

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Form of let

Letters of administration with the will an

nexed must be substantially in the following form :

"Territory of Montana, County of

:

copy of which is

"The last will of A B, deceased, a hereto annexed, having been proved and recorded in the and there being

ters with will probate court of the county of

annexed.

no executor named in said will (or as the case may be), CD is hereby appointed administrator with the will annexed.

day of

"Witness, G H, clerk of said court, with the seal thereof affixed, this the "By order of the court. [L. S.]

A. D. 18-.

"G H, Clerk."

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