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AN ACT to regulate the Settlement of the Estates of Deceased
Persons.[Passed May 1, 1851.]
The People of the State of California, represented in Senate and
Assembly, do enact as follows :
Section 1. The county court, when sitting for the transaction of Probate court
and judge. probate business, shall be known and called the “Probate Court," and the county judge shall be exc-officio probate judge. Sec. 2. Wills shall be proved, letters testamentary, or of adminis- Wills—where to
be proved. tration, shall be granted: First, in the county of which the deceased was a resident at or immediately previous to his death, in whatever place his death may have happened. Second, in the county in which he may have died, leaving estate therein, and not being a resident of the state. Third, in the county in which any part of his estate may be, he having died out of the state, and not having been a resident thereof at the time of his death.
Sec. 3. When the estate of the deceased is in more than one coun- What court to ty, he having died out of the state, and not having been a resident jurisdiction. thereof at the time of his death, the probate court of that county in which application is first made for letters testamentary, or of administration, shall have exclusive jurisdiction of the estate.
OF THE PROOF OF WILLS.
SECTION 4. Any person having the custody of any will, shall, within Wills to be thirty days after he shall have knowledge of the death of the testator, probate court. deliver it into the probate court which has jurisdiction of the case, or to the person named in the will as executor,
Sec. 5. Any person named as executor in any will, shall, within the like. thirty days after the death of the testator, or within thirty days after he has knowledge that he is named executor, present the will, if in his possession, to the probate court which has jurisdiction. Sec. 6. If he intends to decline the trust, he shall at the same time Renouncing
executorship. file his renunciation in writing; if he intends to accept, he shall pre
sent with the will a petition praying that the will be admitted to pro
bate, and that letters testamentary be issued to him. Penalty for Sec. 7. Every person who shall neglect to perform any duties renon-compliance.
quired in the preceding sections, without reasonable cause, shall be liable to every person interested in the will for the damages they may sustain in consequence of such neglect.
Sec. 8. Any person named as executor in a will, though the will is probate.
not in his possession, may present his petition to the probate court which has jurisdiction, praying that the person in possession of the will may be required to produce it, that it may be admitted to probate, and that letters testamentary may be issued to him.
Sec. 9. Any person having an interest in the will may in like manner present a petition praying that it may be required to be pro
duced, and admitted to probate. Order for
Sec. 10. If it be alleged in any petition that any will is in the production of will. possession of a third person, and the court shall be satisfied that the
allegation is correct, an order shall be issued and served upon the person having possession of the will, requiring him to produce it at a
time to be named in the order. Disobeying order. Sec. 11. 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 shall produce the will. Applications for probate when
Sec. 12. Applications for the probate of a will or letters testamentary, may be made to the probate judge out of term-time, and he may also out of term-time issue all necessary orders and warrants to
enforce the production of any will. ving
Sec. 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.
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 resident within the county. Subpænag to
Sec. 16. The court shall also direct subpænas to be issued to the subwitnesses.
scribing witnesses to the will, if they reside in the county.
Court to appoint
Citation when to be issued.
contest will. Minors.
Sec. 17. At the time appointed, or at any time to which the hearing Hearing of may be continued, upon proof being made that notice has been given prove will. as required in the preceding sections, the court shall proceed to hear the testimony to prove the will.
Sec. 18. Any person interested may appear and contest the will. If Who may 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, Probate where the court may admit it to probate on the testimony of one of the sub- contested. scribing 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. Sec. 20. If any person appears and contests a will, he shall file a Grounds of
opposition to statement in writing of the grounds of his opposition.
Sec. 21. If the will is contested, all the subscribing witnesses who are all the witnesses present in the county, and who are of sound mind, must be produced examined. and examined, and the death, absence, or insanity of any of them, shall be satisfactorily proved to the court.
Sec. 22. If none of the subscribing witnesses reside in the county at Where witnesses the time appointed for proving the will, the court may admit the tes-county. timony 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 hand-writing of the testator, and of the subscribing witnesses, or any of them.
Sec. 23. The testimony of each witness shall be reduced to writing, Testimony to and signed by him, and shall be deemed good evidence in any subse- writing. quent 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,
Sec. 24. If the court shall be satisfied, upon the proof taken, that the Certificate of will was duly executed, and that the testator at the time of its exe
proof of will. cution was of sound mind, and not under restraint, a certificate of the proof, signed by the probate judge, and attested by the seal of the court, shall be attached to the will.
Sec. 25. The will and the certificate of the proof thereof, together will and with the testimony which has been taken, shall be filed by the clerk, be filed. and recorded by him in a book to be provided for the purpose.
Sec. 26. The record of the will, and the exemplification by the clerk Record and in whose custody it may be, shall be received in evidence, and be as to be evidence. effectual in all cases as the original would be if proved.
Sec. 27. All wills which shall have been duly proved, and allowed in Wills proved in
be reduced to
Citation to executors.
any other of the United States, or in any foreign county 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 ex
ecuted in conformity with the laws of this state. Notice of probate Sec. 28. When a copy of the will, and the probate thereof duly auof such wills.
thenticated, shall be produced by the executor, or by any other person interested in the will, the court shall appoint a time of hearing, and a notice shall be given in the same manner as in the case of an
original will for probate. Effect of suoh Sec. 29. If on the hearing it shall appear to the court that the instru
ment 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. Contesting
Sec. 30. When a will has been admitted to probate, any person intervalidity of will.
ested 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. Hearing proofs. 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 Devisees, etc.,
proceed to hear the proofs of the parties. If any devisees or legatees minors.
named in the will shall be minors, and have no guardians, the court
shall appoint some attorney to represent them. Revoking or Sec. 33. If upon the hearing of the proofs of the parties, the court amending probate. shall decide that the will is for any reason invalid, or that it is not suffi
ciently proved to have been the last will of the testator, the probate
shall be annulled and revoked. Effect of
Sec. 34. Upon the revocation being made, the powers of the executor revocation.
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.
Sec. 35. The fees and expenses shall be paid by the party contest
ing the validity of the will or the probate, if the will or probate be confirmed. If the probate be revoked, the party who shall have resisted the revocation shall pay the costs and expenses of the proceedings out of the property of the deceased.
Sec. 36. If no person shall, within one year after the probate, Probate when contest the same, or the validity of a will, the probate of the will shall be conclusive; saving, to infants, married women, and persons of unsound mind, a like period of one year after their respective disabilities are removed.
Sec. 37. Whenever any will shall be lost or destroyed by accident Proof of lost will. or design, the probate court shall have power to take proof of the execution and validity of the will, and to establish the said 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 de- The like. stroyed 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 be clearly and distinctly proved by at least two credible witnesses.
Sec. 39. When any will shall be established, the provisions there- Certificate of of 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 wills annexed, shall be issued thereon, in the same manner as upon wills produced and duly proved.
Sec. 40. If, before or during the pendency of an application to Restraining prove a lost or destroyed will, letters of administration be granted on executors, etc. 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 claining under the lost or destroyed will.
proof of lost will.
TESTAMENTARY AND OF ADMINISTRATION, AND
EXECUTORS AND ADMINISTRATORS.
SECTION 41. When any will shall have been proved and allowed, Letters the probate court shall issue letters thereon to the persons named in to be issued.