lication, not less than twice a week, in some newspaper, if there is one printed in the county, if not, by notices in writing, posted in three public places in the county.

ART. 2229, Sec. 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.

Sec. 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 resi

dent within the county..

Sec. 16. The court shall also direct subpenas to be issued to the subscribing witnesses to the will, if they reside in the county.

ART. 2230, Sec. 17. At the time appointed, or at any time to which the hearing may be continued, upon proof being made that notice has been given as required in the preceding sections, the court shall proceed to hear the testimony to prove

i the will.

Sec. 18. Any person interested may appear and contest the will. If it appear that there are minors who are interested, or persons residing out of the county, the court shall appoint some attorney to represent them.

Sec. 19. If no person shall appear 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 shall testify 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.

Seest. 619.

ART. 2231, Sec. 20XIf any person appears and contests a will, he shall file a statement in writing of the grounds of his opposition; when any issue or issues of fact shall be joined in the probate court 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 representations, or for any other cause affecting the validity of such will, such issue or issues shall, at the request of either of the parties interested, be certified immediately to the district court of the proper county for trial by jury; or may, by consent of the parties, be tried by 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. [Am. April 23, 1855; R. S. St. 1851, 450; St. 1850, 378; C. L. 379.

ART. 2232, Sec. 21. 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, shall be satisfactorily shown to the court.

Sec. 22. 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.

617.6.

Sec. 23. 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.

ART. 2233, Sec. 24. If the court shall be satisfied, upon the proof taken or from the facts found by the jury, that the will was duly executed, and that the testator

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at the time of its execution was of sound and disposing mind, and not under restraint, undue influence or fraudulent misrepresentation, a certificate of the proof and the facts found signed by the probate judge, and attested by the seal of the court, shall be attached to the will.-[Am. April 23, 1855; R. S. St. 1851, 450; St. 1850, 378; C. L. 379.

Sec. 25. The will and the certificate of the proof thereof, together with the testimony which has been taken, shall be filed by the clerk, and recorded by him in a book to be provided for the purpose.

ART. 2234, Sec. 26. The record of the will, and the exemplification by the clerk in whose custody it may be, shall be received in evidence, and be as effectual in all cases as the original would be if proved.

Sec. 27. All wills which shall have been duly proved, and allowed in any other of the United States, or in any foreign country or state, may be allowed, and recorded in the probate court of any county in which the testator shall have left any estate; provided, it has been executed in conformity with the laws of this state. St. 641.36%

ART. 2235, 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 inter- . ested in the will, the court shall appoint a time of hearing, and notice shall be given in the same manner as in the case of an original will for probate.

Sec. 29 If on the hearing it shall appear to the court that the instrument ought to be allowed as the will of the deceased, a copy shall be filed and recorded, and the will shall have the same force and effect as if it had been originally proved and allowed in the same court.

ART. 2236, 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 shall file in the court before 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 the filing of the petition a citation shall be issued to the executors, who have taken upon them the execution of the will, or to the administrators, with the will annexed, and to all the legatees named in the will, residing in the state, or to their guardians, if any of them are minors, or their personal representatives, if any of them are 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.

ART. 2237, Sec. 32. At the time appointed for showing cause, or at any 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 parties. If any devisees or legatees named in the will shall be minors, and have no guardians, the court shall appoint some attorney to represent them.

Sec. 33. If upon the hearing of the proofs of the parties, the 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.

Sec. 34. Upon the revocation being made, the powers of the 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. See Sec. 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 evoked, the party who shall have resisted the revocation shall pay the costs and expenses of the proceedings out of the property of the deceased.

ART. 2238, Sec. 36. If no person shall, within one year after the probate, contest the same, or the validity of a [the] will, the probate of the will shall be con

clusive; saving, to infants, married women, and persons of unsound mind, a like, period of one year after their respective disabilities are removed.

ART. 2239, Sec. 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.

Sec. 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 lifetime of the testator, nor unless its provisions shall be clearly and distinctly proved by at least two credible witnesses.

ART. 2240, Sec. 39. When any will shall be established, the provisions thereof shall be distinctly stated and certified by the probate 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 annexed, shall be issued thereon, in the same manner as upon wills produced and duly proved.

ART. 2241, Sec. 40. If before or during the pendency of an application to prove a lost or destroyed will, letters of administration be 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.

III.—LETTERS TESTAMENTARY AND OF ADMINISTRATION, AND BONDS OF EXECUTORS AND ADMINISTRATORS.

ART. 2242, Sec. 41. When any will shall have been proved and allowed, the probate court shall issue letters thereon to the persons named in the will as executors, who are competent to discharge the trust, and who shall appear and qualify. ART. 2243, Sec. 42. No person shall be deemed competent to serve as execu tor, who at the time the will is proved shall be: 1. Under the age of twentyone years; or, 2. Who shall have been convicted of an infamous crime; or, 3. 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 be 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.

ART. 2244, Sec. 43. Any person interested in a will may file objections in writing to the granting of letters testamentary to the persons named as execu tors, or any of them, and the objections shall be heard and determined by the

court.

Sec. 44. When an unmarried woman, who shall have been appointed execu trix, shall marry, her marriage shall extinguish her authority.

Sec. 45. No executor of an executor shall, as such, be authorized to administer on 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.

ART. 2245, Sec. 46. When a person under the age of twenty-one years shall be named executor, letters of administration, with the 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 minor shall arrive at full age, when he may be admitted as joint executor.

2

ART. 2246, Sec. 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.

ART. 2247, Sec. 48. Administrators, with the will annexed, shall have the same authority as the executor named in the will would have had, and their acts shall be as effectual for every purpose.

Sec. 49. Letters testamentary and of administration, with the will annexed, shall be signed by the clerk, and be under the seal of the court.

ART. 2248, Sec. 50. Letters testamentary may be in substantially the following form: "The state of California, county of The last will of A. B. deceased, a copy of which is hereto annexed, having been proved and recorded in the probate court of the county of C. D., who is named therein, is hereby appointed executor. Witness, G. H., clerk of the probate court of the county of with the seal of the court affixed, the 18-(seal). By order of the court, G. H., clerk.”

day of

A. D.

ART. 2249, Sec. 51. Letters of administration, with the will annexed, may be substantially in the following form: "The state of California, county of The last will of A. B., deceased, a copy of which is hereto annexed, having been proved and recorded in the probate court of the county of

and there being no executor named in the will (or, as the case may be), C. D. is hereby appointed administrator, with the will annexed. Witness, G. H., clerk of the probate court of the county of with the seal of the court affixed, the ・day of A. D. 18- (seal). By order of the court, G. H., clerk." ART. 2250, Sec. 52 Administration of the estate of a person dying intestate,

Shall be granted to some one or more of the persons hereinafter mentioned, and

hey shall be, respectively, entitled in the following order: 1. The surviving husband or wife, or some person as he or she may request to have appointed. 2. The children. 3. The father or mother. 4. The brothers. 5. The sisters. 6. The grandchildren. 7. Any other of the next of kin who would be entitled to share in the distribution of the estate. 8. The public administrator. 9. Creditors. 10. Any person or persons legally competent; provided, that when there was any partnership existing between the intestate at the time of his death, and any other person, the surviving partner shall in no case be appointed administrator of the estate of such intestate.-[Am. April 23, 1855; R. S. St. 1851, 454; St. 1850, 381; C. L. 383.(1).

Sec. 53. When there shall be several persons claiming and equally entitled to the administration, males shall be preferred to females, and relatives of the whole blood to those of the half blood.

368 Sec. 54When there are several persons equally entitled to the administration, the court may, in its discretion, grant letters to one or more of them.

ART. 2251, Sec. 55. No person shall be entitled to letters of administration who shall be: 1. Under the age of twenty-one years; or, 2. Who shall have been Convicted of an infamous crime; or, 3. 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.

Sec. 56. When any unmarried woman, who shall have been appointed administratrix, shall marry, her marriage shall extinguish her authority.

ART. 2252, Sec. 57. If any person entitled to administration shall be a minor, administration shall be granted to his or her guardian.

Sec. 58. Application for letters of administration shall be made by petition, in writing, signed by the applicant or his counsel, and filed by the clerk of the court. The petition must state the facts essential to give the court jurisdiction of the

case.

(1) Anderson v. Potter, 5 Cal. 63.

Sec. 59. Letters of administration shall only be granted at a regular term of the court, or at a special term appointed by the judge for the hearing of the application.

ART. 2253, Sec. 60. When any petition praying for letters of administration, has been filed, the clerk shall give notice thereof, by causing notices to be posted, up in at least three public places in the county, one of which shall be at the place where the court is held. The notice shall state the name of the deceased, the name of the applicant, and the term of the court at which the application will be heard. Such notice shall be given at least ten days before the hearing.

Sec. 61. Any person interested may contest the application, by filing a written opposition thereto, on the ground of the incompetency of the applicant, or may assert his own rights to the administration, and pray that letters be issued to

himself.

Sec. 62. On the hearing, it being first proved that notice has been given according to law, the court shall proceed to hear the allegations and proof of the parties, and to order the issuance of letters of administration as the case may require.

Sec. 63. An entry in the minutes of the court that proof was made, that notice had been given, according to law, shall be conclusive evidence of the fact of such notice.

ART. 2254, Sec. 64. Letters of administration may be granted to any applicant, though it appears that there are other persons having better rights to the administration, when such persons fail to appear and claim the issuance of letters to themselves., X. See St.

Sec. 65 Before letters of administration shall be granted on the estate of any person who is represented to have died intestate, the fact of his dying, intestate shall be proved by the oath of the applicant, and the court may also examine any other person, concerning the time, place and manner of the death, and whether or not the deceased left any will, and may compel any person to attend as a witness for that purpose.

ART. 2255, Sec. 66. Administration may be granted to one or more competent persons, although not entitled to the same, at the request of the person entitled to be joined with such person. The request shall be in writing, and shall be filed in

the court.

Sec. 67. When letters of administration have been granted to any other person than the surviving husband or wife, the child, the father, mother, or the brother of the intestate, any one of them may obtain the revocation of the letters by presenting to the probate court a petition praying the revocation, and that letters of administration be issued to him or her.

Sec. 68. When any such petition is filed, the clerk shall issue a citation to the administrator to appear and answer the petition at the next regular term of the court, or at any special term that may be appointed by the judge.

Sec. 69. At the time appointed, the citation having been duly served and returned, the court shall proceed to hear the allegations and proofs of the parties; and if the right of the applicant is established, and he or she be competent, letters of administration shall be granted to the applicant, and the letters of the former administrator be revoked.

Sec. 70. The surviving husband or wife, when letters of administration have been granted to a child, to the father, or to a brother of the intestate, or any of such relatives, when letters have been granted to any other of them, may assert his or her prior right, and obtain letters of administration, and have the letters before granted revoked, in the manner prescribed in the three preceding sections. ART. 2256, Sec. 71. Letters of administration shall be signed by the clerk, and be under the seal of the court, and may be in substantially the following form: "The state of California, county of C. D. is hereby appointed administrator of the estate of A. B., deceased. [Seal.] Witness, G. H., clerk of the

St

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