CHAPTER IV.

POSTHUMUS CHILDREN-DEVISEE.

SECTION 2334. Posthumus Children.-Posthumus children unprovided for by the father's will, shall inherit the same interest as though no will had been made.

The birth of a child to a testator, subsequent to the making of his will and before his death, will alone operate as an implied revocation of the will. McCullum v. McKinzie, 26 Iowa, 510; Carey v. Baughn 36 Id., 540.

Where a testator having two children, bequeathed his entire property to his wife, and subsequently two other children were born to him, it was held that the will was presumptively revoked. Negus v. Negus et. al., 49 Iowa, 487. To the same effect is Fallon v. Chidester. Id., 588.

The probate of a will establishes its execution and renders it admissible in evidence but does not determine the title of property claimed under it. Id.

SEC. 2335. Allowance to.-The amount thus allowed to a posthumous child, as well as that of any other claim which it becomes necossary to satisfy in disregard of or in opposition to the contemplation of the will, must be taken ratably from the interests of heirs, devisees and legatees.

SEC. 2336. "Devisee": meaning of.-The word "devisee" as used in this title, shall, when applicable, be construed to embrace "legatees," and the word "devised" shall, in like cases, be understood as comprising the force of the word "bequeathed."

SEC. 2337. Devisee: children of inherit-If a devisee die before the testator, his heirs shall inherit the amount so devised to him unless from the terms of the will a contrary intent is manifest.

The widow of a deceased husband will not inherit from the child who died before the death of the husband. Will of Gustav Overdieck, 50 Iowa, 244.

Where a devisee dies before the testator, leaving a widow and a brother, the brother is, but the widow is not, an heir of the devisee, under this section. Blackman v. Wadswort, 65 Iowa, 80.

CHAPTER V.

PROBATE OF WILLS.

SECTION 2338. To file will.-Any person having the custody of a will, shall, as soon as he is informed of the death of the testator, file the same with the clerk, who shall open and read the same.

SEC. 2339. Penalty for refusal. If any person having the custody of a will fail to produce the same as required by the preceding section after receiving a reasonable notice so to do, the court may commit him to jail until he produce the same; and he shall be liable for all damages occasioned by his failure to produce such will.

SEC. 2340. Probate.-(As amended by ch. 11, 16 G. A.) After the will is produced and read, a day shall be fixed by the court or clerk for proving the same, which day shall be during a term of court, and may be postponed from time to time in the discretion of the court. [Whenever the proving of a will is contested either party shall be entitled to demand a jury and to the verdict of a jury on the issues involved.]

This section (2340) requires that the issues on the probate of a will shall be submitted to a jury when either party demands it; and the verdict in such case has the same effect as in ordinary actions at law, and should not be set aside for any less weighty reasons. Collins v. Brazzill, 63 Iowa, 432.

STATE OF IOWA,

No. 9.

Proof of Death of Testator.

COUNTY,

SS.

...

I, James Clark, of County, Iowa, being duly sworn depose and say that I was personally acquainted with John Doe, of said county, in his lifetime, and that he died on the ...day of... ......18.., at his home in (state place), (or as the fact is), in said county.

JAMES CLARK.

Subscribed and sworn to by the said James Clark, before me this........ day of

...

18...

(Signature of Officer.)

No. 10.

Production and Filing of Will by Custodian.

To the District Court, in and for

• County, Iowa:

The undersigned states, that late of said county, departed this life at his late residence in said county, on the........day of of... 18..; that the undersigned is the widow of said deceased; that he left his last Will and Testament in the custody of the undersigned, which she presents herewith, and asks that it may be filed, opened and read according to law, and proceedings instituted to the end that it may be duly admitted to probate and carried into execution. Dated this.... day of

18...

I,

....COUNTY,

......9

No. 11.

SS.

who subscribed the foregoing statement on oath depose and state that I know the contents thereof, and that the same are true, as I verily believe.

The custodian of a will must produce it for probate, upon notice from a private person. If he refuses to do so, a petition may be filed to compel compliance.

No. 12.

Petition for Production of Will.

To the District Court, in and for........ County, Iowa.

IN THE MATTER OF THE WILL

}

OF JOHN SMITH, DECEASED. In Probate.

Your petitioner, Samuel Hill, respectfully showeth:

That John Smith, late of ........ County, Iowa, died on or about the....day of .18.., leaving a large amount of property in the county. The said estate, real and personal, consisting of lands, crops, horses, cattle and other stock, grain, hay and farming utensils, (or whatever the property may be), is of the aggregate value of about ten thousand dollars. That the deceased left the following heirs: (Here enumerate and name them, giving age and residence.) That said deceased left a will

which is now in the hands of a son of the testator, who refuses and neglects to present it for probate. That your petitioner is one of the heirs of said testator and a devise under the will as he verily believes; he therefore prays that the said..... .... may be cited by the court to be and appear before the court and bring in and produce said will for probate, at a time to be fixed by the court. Dated this........day of A. D., 18...

I,....

of lawful age, being duly sworn, depose and say, that I am the person who signed the foregoing petition, that I have read the same (or heard it read), and that the statements contained therein are true as I verily believe.

Notice to Produce Will in Court.

District Court in and for ............ County, Iowa.

Being informed that you have the custody of a writing purporting to be the last will and testament of ....

late of.. ...County, Deceased, you are hereby required forthwith to produce and file the same in said court, in order that the same may be opened and read, and a time fixed for probating the same according to law. Herein fail not at your peril.

In witness whereof I have hereunto set my hand and affixed the seal of said court, this......day of.. .18..

[SEAL.]

Clerk of said District Court.

The notice should be served by the Sheriff, by reading and giving a copy thereof, for such length of time as the court or judge may prescribe.

STATE OF IOWA,

No. 15.

Citation to bring Will into Court.

COUNTY,}

SS. In District Court.

WHEREAS, complaint has been made by Samual Hill, who claims to be interested in the estate of John Smith, late of said county, dereased, that the last will and testament of said John Smith, is in the custody of.......... and that the same has not yet been admitted to probate, and we being willing that right should be done, do hereby cite and summon you to be and appear before our said court on the.......day of.... ..18.., to be held at..... and bring with you said will and testament, to be examined on oath, upon the matter of said complainant.

Given under my hand and the seal of said court, this.....day of...... .A. D. 188...

[SEAL.]

Clerk, etc.

After the will has been opened and read by the clerk, he must fix a day for proving the same, and make an entry on his record accordingly, which may be in the following form: (Code, 5, 2341.)

No. 16.

Record of Entry of Time of Proving Will.

IN THE MATTER OF THE LAST WILL AND
TESTAMENT OF JOHN DOE, DECEASED. S

And now on this......
....day of.

.188...., came

and produced and filed in my office a

paper purporting to be the last will and testament of.. deceased, being satisfied that said...........

is

dead, I did then open and publicly read said will, and ordered that the.....day of..... 18.., being a day in the.......18.. term of the District Court, in and for...... ..County, Iowa, is hereby fixed and appointed for final proof and probate of said will and that notice of the same be published in the

a newspaper published in

. Clerk.

If the custodian of a will neglects or refuses to produce the same for probate, or conceals it with a view of suppressing it, ay person having an interest in the estate may petition the court to compel its production.