Proof of handwriting. Proof of lost or destroyed will. Proof by exemplified copy of foreign record. Proof by commission. ing the will, and the parties in interest and any other person, as to the existence or destruction of any other testamentary paper; and before recording any will, or admitting the same to probate, he must inquire particularly into the facts and circumstances, and must be satisfied of its genuineness and validity. Laws of 1837, ch. 460, § 17, § 10, last clause; same stat, 3 R. S., 5th ed., 149, *§ 66. § 11. When any one or more of the subscribing witnesses to such will are dead, or reside out of the state, or are insane or incompetent to testify, then such proof must be taken of the handwriting of the testator, and of the witness or witnesses so dead, absent, incompetent or insane, and of such other circumstances, as would be sufficient to prove such will on the trial of a civil action. 2 R. S., 58, § 13. § 12. When a will is lost or destroyed by accident or design, the has surrogate power to take proof of the execution and validity thereof, and to establish the same; but it cannot be admitted to probate unless proved to have been in existence at the death of the testator, or to have been accidentally or fraudulently destroyed in his lifetime, nor unless its provisions are clearly and distinctly proved by at least two credible witnesses, a correct copy or draft being deemed equivalent to one witness. § 13. The will of a person residing out of this state which has been duly admitted to probate in the state or country where he was domiciled, must be admitted to probate as a will of personal property, upon the production of a duly exemplified or authenticated copy of such will and probate, under the seal of the court in which the same was proved, and as a will of real property whenever the proofs show that it was executed in conformity to the laws of this state. 14. A will, whether in writing, and in possession of the applicant for probate, or lost, or destroyed, or without the state, or a will, the witnesses whereto reside without the state, or a nuncupative will, may be proved upon commission to be issued by the surrogate having jurisdiction. The commissioner must take the proofs and examinations in writing, which must be subscribed by the witnesses and certified by the commissioner. Modified from 2 R. S., 67, § 63. to be § 15. If it appears to the surrogate, from the proofs duly Will, when taken in any of the modes hereinbefore prescribed, that the will recorded. was duly executed, and is valid as the last will and testament of the testator, it must be admitted to probate, and together with the proofs and examinations so taken must be recorded in a book to be provided by the surrogate, as a will of real or personal property, or both; and the record thereof certified by him. If the will is denied probate, the proofs and examinations must be entered in the surrogate's minutes. From 2 R. S., 58, § 14; as amended, Laws of 1837, ch. § 16. The surrogate must enter in his minutes his decision concerning the sufficiency of the proof, or the validity, of any will offered for probate; and in case he decides against the sufficiency of the proof, or the validity, of any such will, he must, without fee or charge, state the grounds upon which the decision is made, if required by either party. Laws of 1837, ch. 460, § 22; same stat., 3 R. S., 5th ed., § 17. Such record and probate, whether the will is a will of real or personal property, or both, is conclusive evidence of the validity of the will, until it is reversed on appeal, or revoked by the surrogate, or the will is declared void by a competent tribunal. 2 R. S. 61, § 29; extended to include wills of real property. Surrogate to enter in his minutes his decision Probate, conclusive. how far may be read § 18. Every will, so proved, must have a certificate of such Proved will proof indorsed upon the original will, or upon the exemplified in evidence. copy or other proof of its contents, which is admitted to probate, signed by the surrogate, and attested by his seal of office, and may be read in evidence without further proof thereof. The record of such will, so made, and the exemplification of such will by the surrogate, in whose custody the same may be, must be received in evidence, and has the same effect in all cases as the original will would have, if produced and proved. 2 R. S., 58, § 15; as amended, Laws of 1837, ch. 460, § 19. The exemplification of the record of any last will and testament, proved before the judge of the former court of probates, and recorded in his office, before the first day of January, one thousand seven hundred and eighty-five, certified under the seal of the officer in whose custody such record may be, must be received in evidence in all cases, after it has been made to Record of court of former probate. Records of wills proved in chancery or supreme court. Recording exemplified copies in different counties. Wills, wher and to returned. appear that diligent and fruitless search has been made for the original will. 2 R. S., 58, § 20. § 20. Every will or copy proved by commission issued out of the late court of chancery, or out of the supreme court before the time at which this Code takes effect, must have a certificate of such proof indorsed thereon, signed by the clerk, and attested by the seal of the court, and may then be read in evidence without further proof thereof; and every record so made, or an exemplification thereof, must be received in evidence, and has the same effect in all cases as the original will would have, if produced and proved, and may in like manner be repelled by contrary proof. From 2 R. S., 67, § 66. § 21. The clerks of the supreme court, and the surrogates of the several counties, may make exemplified copies of any will, proved in their respective courts, together with all the notices, citations and proofs relating to the same, and such exemplified copies may be recorded in the book kept for recording wills, by the surrogate of any county in which any real property of the testator is situated. Laws of 1837, ch. 460, § 66. § 22. All wills, whenever proved according to law, except suck whom to be as are required to be deposited, must, after being recorded, be returned upon demand to the person who delivered the same, or in case of his death, insanity or removal from the state, to any devisee named in such will, or to the heirs or assigns of such devisee; or if the same relate to personal estate only, to any acting executor of such will, or administrator with the will annexed, or to a legatee named therein. 2 R. S., 66, § 54. ARTICLE III. ALLEGATIONS. SECTION 23. Contesting on allegations after probate. 24. Issuing citation. 25. Proceedings on the return. 26. Executor, &c., to suspend his proceedings. 27. Determination of the proceedings. 28. Notice of revocation. 29. Executor, &c., to account. § 23. Notwithstanding a will may have been admitted to probate, any party in interest may, at any time within one year after probate, file in the office of the surrogate who admitted the will to probate, his allegations in writing, against the competency of the proof. 2 R. S., 61, §§ 30, 31. Contesting tions after probate. on allega citation. § 24. The surrogate must then issue a citation to the personal Issuing representatives, and to all the devisees and legatees named in the will, residing in this state, or their guardians, if any of them are minors, or their successors, if any of them are dead, requiring them to appear at his office, to sustain the probate of such will. 2 R. S., 61, § 32. § 25. At the time appointed, the surrogate must proceed as in the case of an original probate, to hear the proofs, after due proof is made of the service of the citation. If any legatees or devisces named in the will contested are minors, and have no general guardian within the state, he must appoint guardians to take care of their interests in the controversy, as provided in section 4 of this Code. All the provisions in relation to the examination of witnesses within or without the state, in proceedings for an original probate, apply to proofs on allegations. 2 R. S., 62, § 34. § 26. After the service of the citation, the personal representatives must suspend all proceedings in relation to the estate of the testator, except the preservation of the property, the collection and recovery of moneys, the payment of debts, and such other acts as may be directed by the surrogate, until a decision is had in the proceeding. 2 R. S., 62, § 33. Proceed ings on the return. Executor, pend his Determina tion of the § 27. If, upon hearing the proofs, the surrogate decides that proceeding. such will is not sufficiently proved to have been the last will and testament of the testator, he must revoke the probate thereof; if otherwise, he must confirm such probate. Upon any such hearing before the surrogate, the depositions of witnesses taken on the probate, and who may be dead, insane, or incompetent, may be received in evidence. Notice of revocation. Executor, &c, to account. 2 R. S., 62, §§ 35, 36. § 28. If the surrogate revokes the probate, he must record and certify the revocation in the same manner as a probate; and cause notice to be served immediately upon the personal representatives, and to be published for three weeks in a newspaper printed in the county, if there is one. 2 R. S., 62, § 37. § 29. The powers of the personal representatives cease, upon being served with such notice; and they must account to the successors of the decedent for all property received by them. But they are not liable for any act done by them in good faith, previous to the service upon them of the citation, nor for any act mentioned in section 26 done in good faith, previous to the service of the notice of revocation. 2 R. S., 62, § 38. ARTICLE IV. Surrogate may grant letters. LETTERS TESTAMENTARY. SECTION 30. Surrogate may grant letters. 31. Who is disqualified to serve as executor. 32. Surrogate to inquire into objections, and in certain cases to require bond. 33. Bond by representative suing for act causing decedent's death. 34. Married women. 35. Renunciation, revocation thereof. 36. Order to show cause why executor should not be deemed to have renounced. 30. The surrogate who has admitted a will to probate may, at any time after the will is proved, grant letters testamentary thereon to the executors named therein, who are competent by law to serve, and who appear and qualify, unless some party interested in the estate makes affidavit stating that he is advised and believes that there are just and substantial objections to granting such letters to one or more of the executors, and that he |