Sec. 717. Custodian of wills-Thirty days-Must deliver to whom. Every custodian of a will, within thirty days after receipt of information that the maker thereof is dead, must deliver the same to the county 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." Sec. 718. Executor or other person interested may petition for probate of will. Any executor, devisee or legatee named in 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 State, or a nuncupative will.* Sec. 719. What petition must show. 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 the right to the 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 testamentary are prayed. No defect of form, or in the statement of jurisdictional facts actually existing, shall make void the robate of a will." • Snyder, 5,145; Wilson, 1,486. * Snyder, 5,146; Wilson, 1,487; California, 1,299 (Kerr), identical; Estate of Olmstead, 120 Cal. 447; Estate of Edwards, 154 Cal. 91, 97 7 Snyder, 5,147; Wilson, 1,488; California, 1,300 (Kerr), similar. Sec. 720. When executor held to renounce his right to letters. If the person named in a will as executor, 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 right to letters, and the court may appoint any other competent person administrator, unless good cause for delay is shown." Sec. 721. Will in possession of third person-Procedure. If it is alleged in any petition that the will is in the possession of a third person, and the court is satisfied that the allegation is correct, an order must be issued and served upon the person having possession of the will, requiring him. to produce it in the court at the 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 of the court be committed to the jail of the county, and kept in close confinement until he produces it." Sec. 722. Petition filed-Will produced-Court must fix day for hearing. When the petition is filed and the will produced, the judge of the county court must fix a day for hearing the petition for the probate thereof, not less than ten nor more than thirty days from the production of the will, and he shall cause notice of such hearing to be given by posting the same in three of the most public places in the county, one of which shall be at the courthouse in which said hearing is to be had, and by mailing copies of such notice to all persons interested in the estate, residents of this State, at their last known place of residence. If the post office address of any of the heirs, legatees or devisees of said will is unknown, 8 Snyder, 5,148; Wilson, 1,489; California, 1,301 (Kerr), identical; Estate of McDonald, 118 Cal. 277, 50 Pac. 399; Estate of Von Buncken, 120 Cal. 343, 52 Pac. 819. 9 Snyder, 5,149; Wilson, 1,490. said notice shall be published in some newspaper of general circulation printed in the county. If the notice be published in a weekly newspaper, it must appear therein on two different days, and said hearing shall not be less than ten days from the date of the first publication of such notice, and if it is a newspaper published oftener than once a week, it shall be published so that there must be two publications, both the first and the last days being included. If the notice is by posting, it must be given at least ten days before the hearing.10 Sec. 723. Notice to heirs-How given. Written or printed copies of the notice of the time appointed for the probate of the will, must be addressed to the heirs of the testator resident in the State, at their places of residence, if known to the petitioner, and deposited in the postoffice, with the postage thereon prepaid by the petitioner, at least ten days before the hearing; the notice must be issued by the judge over the seal of the court. Proof of the mailing of the notice must be made at the hearing; the same notice and proof of service thereof on the person named as executor must be made if he be not the petitioner; also on any person named as coexecutor, not petitioning, if their place of residence be known.11 Sec. 724. Court may receive petitions at chambers or out of term time. The judge of the county court may, out of term time, or at chambers, receive petitions for the probate of wills, and make and issue all necessary orders and writs to enforce the production of wills and the attendance of witnesses, and may appoint special terms of his court for hearing the petitions, trials of issues, and admitting wills to probate.12 10 Snyder, 5,150; Act approved March 27, 1909; California, 1,303 (Kerr), similar. 11 Snyder, 5,151; Wilson, 1,492; California, 1,304 (Kerr), similar. 12 Snyder, 5,152; Wilson, 1,493. Sec. 725. Proof of service of notice-Hearing proof of will. At the time appointed for the hearing, or at the time to which the hearing may have been postponed 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. If such notice is not proved to have been given, or if from any other cause it is necessary, the hearing may be postponed to a day certain, and notice to absentees given thereof, as original notice is required to be given. The appearance in court of parties interested is a waiver of notice.13 Sec. 726. Persons interested may appear and contest will. 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 one year after such probate; nor does the nonappointment of an attorney by the court of itself invalidate the probate of a will.14 14 Sec. 727. Procedure where no person appears to contest. If no person 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 satisfied from the testimony of such witness 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.15 13 Snyder, 5,153; Wilson, 1,494; California, 1,306 (Kerr), similar. 14 Snyder, 5,154; Wilson, 1,495; California, 1,307 (Kerr), similar. 15 Snyder, 5,155; Act of March 7, 1909; California, 1,308, similar; Ward v. Bd. Com., 12 Okla. 267, 70 Pac. 378; State v. McGlynn, 20 Cal. 233, 81 Am. Dec. 118; Estate of Warfield, 22 Cal. 51, 83 Am. Dec. 49; Tracy v. Muir, 151 Cal. 363, 90 Pac. 832. Sec. 728. Holographic will-How proved. An holographic will may be proved in the same manner that other private writings are proved.1o Sec. 729. Written grounds of opposition to probate must be filed. If anyone appears to contest the will, he must file written grounds of opposition to the probate thereof, and serve a copy on the petitioner and other residents of the county interested in the estate, and any one or more of whom may demur thereto upon any of the grounds of demurrer allowed by law in civil actions. If the demurrer be sustained, the court must allow the contestant a reasonable time, not exceeding ten days, within which to amend his written opposi tion. If the demurrer is overruled, the petitioner and others interested may jointly or separately answer the contestant's grounds, traversing or otherwise obviating or avoiding the objections. Any issues of fact thus raised, involving: 1. The competency of the decedent to make a last will and testament. 2. The freedom of the decedent at the time of the execu tion of the will from duress, menace, fraud, or undue influence. 3. The due execution and attestation of the will by the decedent or subscribing witnesses; or, 4. Any other question substantially affecting the validity of the will must be tried and determined by the court. On the trial the contestant is plaintiff, and the petitioner is defendant.17 Sec. 730. The court must give in writing findings of fact and conclusions of law. The court, after hearing the case, must give in writing the findings of fact and conclusions of law upon the issues sub 16 Snyder, 5,156; Wilson, 1,497; California, 1,309 (Kerr), similar. 17 Snyder, 5,157; Wilson, 1,498; California, 1,312 (Kerr), similar. |