Jury to decide CHAPTER IX. General Provisions. SEC. 1284. All questions of fact, where the trial is questions of fact. by jury, other than those mentioned in the next section are to be decided by the jury, and all evidence thereon is to be addressed to them except when otherwise provided by this Code. Court to decide admissibility of testimony, etc. SEC. 1285. All questions of law, including the adquestions of law, missibility of testimony, the facts preliminary to such admission, and the construction of statutes and other writings and other rules of evidence, are to be decided by the court, and all discussions of law addressed to it. Whenever the knowledge of the court is by law made evidence of a fact, the court is to declare such knowledge to the jury, who are bound to accept it. Provisions respecting evidence before a jury, made ap. plicable before court, referee, etc. Moneys paid SEC. 1286. The provisions contained in this part of the Code respecting the evidence on a trial before a jury, are equally applicable on the trial of a question of fact before a court, referee, or other officer. SEC. 1287. Whenever moneys are paid into or deinto court to be posited in court, the same shall be delivered to the clerk in person, or to such of his deputies as shall be specially authorized by his appointment in writing to receive the delivered to clerk. Conflicting acts repealed. Saving clause, same. SEC. 1288. All acts and parts of acts in controvention with this Code are hereby repealed, saving and excepting all rights, actions, and rights of action, which shall have accrued, and exist when this Code takes effect, and all actions then commenced shall be prosecuted to a determination in conformity to the rules herein prescribed, so far as applicable. Approved March 13, 1884. CHAPTER LVI. AN ACT relating to Procedure of Probate Courts, in the SECTION 1. Be it enacted by the Governor and Legislative Assembly of the Territory of Utah as follows: CHAPTER I. Of Wills. Jurisdiction of probate court Wills must be proved, and letters testamentary or of administration granted: 1. In the county of which the decedent was a resi- over the estate, dent at the time of his death, in whatever place he may have died; 2. In the county in which the decedent may have died, leaving estate therein, he not being a resident of the Territory; 3. In the county in which any part of the estate may be, the decedent having died out of the Territory and not a resident thereof at the time of his death; 4. In the county in which any part of the estate may be, the decedent not being a resident of the Territory, and not leaving estate in the county in which he died; 5. In all other cases, in the county where application for letters is first made. when exercised," When jurisdic first application. SEC. 2. When the estate of the decedent is in more than one county, he having died out of the Territory, and tion decided by not having been a resident thereof at the time of his death, or being such non-resident, and dying within the Territory, and not leaving estate in the county where he died, the probate court of that county in which application is first made for letters testamentary or of administration, has exclusive jurisdiction of the settlement of the estate. Custodian of will to deliver same, to whom. Penalty. of will. CHAPTER II. Of the Probate of Wills. SEC. 1. Every custodian of a will, within thirty days after receipt of information that the maker thereof is dead, must deliver the same to the probate court having jurisdiction of the estate, or to the executor named therein. A failure to comply with the provisions of this section makes the person failing responsible for all damages sustained by any one injured thereby. Who may peti. SEC. 2. Any executor, devisee, or legatee named in tion for probate any will, or any other person interested in the estate, may, at any time after the death of the testator, petition the court having jurisdiction to have the will proved, whether the same be in writing in his possession or not, or is lost or destroyed, or beyond the jurisdiction of the Territory, or a nuncupative will. Contents of petition. When executor letter. SEC. 3. A petition for the probate of a will must show: 1. The jurisdictional facts; 2. Whether the person named as executor consents to act, or renounces his right to letters testamentary; 3. The names, ages, and residence of the heirs and devisees of the decedent, so far as known to the petitioner; 4. The probable value and character of the property of the estate; 5. The name of the person for whom letters of testamentary are prayed. No defect of form, or in the statement of jurisdictional facts actually existing, shall make void the probate of a will. SEC. 4. If the person named in a will as executor, forfeits right to for thirty days after he has knowledge of the death of the testator and that he is named as executor, fails to petition the proper court for the probate of the will, and that letters testamentary be issued to him, he may be held to have renounced his rights to letters, and the court may appoint any other competent person administrator, unless good cause for delay is shown. Will to accom prayed for and SEC. 5. If it is alleged in any petition that any will is in the possession of a third person, and the court is pany petition or satisfied that the allegation is correct, an order must be its presentation issued and served upon the person having possession of the how enforced. 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. how given. SEC. 6. When the petition is filed and the will pro- Notice of petiduced, the clerk of the court must set the petition for tion for probate, hearing by the court upon some day not less than ten or more than thirty days from the production of the will. Notice of the hearing shall be given by such clerk by publishing the same in a newspaper of the county; if there is none, then by written or printed notices posted in at least three 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. named executors SEC. 7. Copies of the notice of the time appointed Heirs and for the probate of the will must be addressed to the heirs to be notified, of the testator resident in the Territory, at their places of how. residence, if known to the petitioner, and deposited in the post office, with the postage thereon prepaid, at least ten days before the hearing. If their place 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 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 hearing is equivalent to mailing. judge at cham SEC. 8. The judge or clerk of the probate court may Petition may be at any time receive petitions for the probate of wills. presented to The judge may make and issue all necessary orders and bers, and what writs to enforce the production of wills and the attend- judge may do. Hearing proof of will after proof of ance of witnesses, and may appoint a time for hearing petitions, trials of issue and admitting wills to probate. SEC. 9. At the time appointed for the hearing, or the time to which the hearing may have been postponed, service of notice. 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. Who may appear and contest the will. Probate, when no contest. Olographic wills. Contestant to contest, and pe SEC. 10. 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 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 Section 22 of this Chapter, nor does the non-appointment of an attorney by the court of itself invalidate the probate of a will. SEC. 11. If no person appears 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 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. SEC. 12. An olographic will may be proved in the same manner that other private writings are proved. Contesting Probate of Wills. SEC. 13. If any one appears to contest the will, he file grounds of must file written grounds of opposition to the probate titioner to reply. 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 upon any of the grounds mentioned in the Code of Civil Procedure, as grounds of demurrer. 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 petitioners and others interested may jointly or separately answer the contestant's grounds, traversing or otherwise obviating or avoiding the objections. All issues whether of law or fact must be tried by the court, unless an issue of fact be referred as hereinafter provided. Proofs of sub scribing wit. SEC. 14. At the hearing of the contest, the proofs nesses must be of the subscribing witnesses must be reduced to writing, whereupon the judgment of the court must be rendered, reduced to writing, etc. |