mitted, and upon these the court must render judgment, either admitting the will to probate or rejecting it. In either case, the proofs of the subscribing witnesses must be reduced to writing. If the will be admitted to probate, the judgment, will and proofs must be recorded.18

Sec. 731. Subscribing witnesses who must be produced and examined--Proof of handwriting admitted.

If the will is contested, all the subscribing witnesses who are present in the county, and who are of sound mind, must be produced and examined; and the death, absence or insanity of any of them must be satisfactorily shown to the court. If none of the subscribing witnesses reside in the county, and are not present at the time appointed for proving the will, the court may admit the testimony 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 handwriting of the testator and of the subscribing witnesses, or any of them.19

Sec. 732. Testimony of each witness reduced to writing.

The testimony of each witness, reduced to writing and signed by him, shall be taken, kept and filed by the judge, and shall be good evidence in any subsequent contests or trial 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.20

Sec. 733. Certificate or proof and facts found to be issued, if court satisfied upon proof.

If the court be satisfied upon the proof taken that the will was duly executed, and that the testator was, at the time of

18 Snyder, 5,158; Wilson, 1,499. 19 Snyder, 5,159; Wilson, 1,500; California, 1,315 (Kerr), identical; Estate of Tyler, 121 Cal. 405, 53 Pac. 928; Estate of McCarty, 58 Cal. 335.

20 Snyder, 5,160; Wilson, 1,501; California, 1,316 (Kerr), identical; Estate of Warfield, 22 Cal. 51.

the execution thereof of sound and disposing mind, and not acting under duress, menace, fraud or undue influence, a certificate of the proof and the facts so found, signed by the judge and attested by the seal of the court, must be attached to the will.21

Sec. 734. Certificates together with evidence must be filed. The will and the certificate of the proof thereof, together with all the evidence taken, must be filed by the judge, and recorded by him in a book to be provided, at the charge of the county, for that purpose.22

Sec. 735. Will duly proved and allowed in any foreign country or State may be recorded, when.

Every will duly proved and allowed in any other of the Territories, or in any of the United States or the District of Columbia, or in any foreign country or State, may be allowed and recorded in the county court of any county in which the testator shall have left any estate, or any estate for which claim is made.23

Sec. 736. Copy of will duly authenticated produced by executor must be filed-Petition hearing.

When a copy of the will and the probate thereof, duly authenticated, shall be produced by the executor, or by any other person interested in the will, with a petition for letters, the same must be filed, and the court or judge must appoint a time for the hearing, notice whereof must be given as provided for an original petition for the probate of a will."

Sec. 737. Must be admitted to probate when, and letters testamentary issued.

If, on the hearing, it appears upon the face of the record that the will has been proved, allowed and admitted to pro

21 Snyder, 5,161; Wilson, 1,502. 22 Snyder, 5,162; Wilson, 1,503. 23 Snyder, 5,163; Wilson, 1,504; California, 1,322 (Kerr), similar.

24 Snyder, 5,164; Wilson, 1,505; California, 1,323 (Kerr), similar.

bate, in any other of the Territories, or any State of the United States, the District of Columbia, or in any foreign country or State, and that it was executed according to the law of the place in which the same was made, or in which the testator was at the time domiciled, or in conformity with the laws of this State, it must be admitted to probate, be certified in like manner according to the facts, and recorded, and have the same force and effect as a will first admitted to probate in this State, and letters testamentary or of administration issued thereon.25

Sec. 738. Within one year after probate any person interested may contest same-Petition-Material facts

to be shown.

When a will has been admitted to probate, any person interested therein may at any time within one year after such probate, contest the same or the validity of the will. For that purpose he must file in the court in which the will was proved a sworn petition in writing containing his allegations, that evidence discovered since the probate of the will, the material facts of which must be set forth, shows:

1. That a will of a later date than the one proved by the decedent, revoking or changing the former will, has been discovered, and is offered; or,

2. That some jurisdictional fact was wanting in the former probate; or,

3. That the testator was not competent, free from duress, menace, fraud or undue influence when the will allowed was made; or,

4. That the former will was not duly executed and attested.20

25 Snyder, 5,165; Wilson, 1,506; California, 1,324 (Kerr), similar.

20 Snyder, 5,166; Wilson, 1,507; California, 1,327 (Kerr), similar.

Sec. 739. Executors or administrators and all legatees and devisees must be cited.

Upon filing the petition, a citation must be issued to the executors of the will, or to the administrators with the will annexed, and to all the legatees and devisees mentioned in the will, and heirs residing in the State, so far as known to the petitioner, or to their guardian, 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.27

Sec. 740. If will offered by petition, it must show all required in original case.

If another will be offered by the petition, it must show all that is required in the original case of a petition for the probate of a will, and like notices must be served in the same manner, and upon all the parties, as required before the hearing of proof of any will originally: Provided, That such notices need not be served on any persons upon whom the citation required in the preceding section is to be served.28

Sec. 741. After service of citations, court must proceed to

try the issues Judgment.

At the time appointed for showing cause, or at any time to which the hearing is postponed, personal service of the citations having been made upon the persons named therein, and the required publication, posting and service of the notices having been made, and all duly proved, the court must proceed to try the issues joined in the same manner as in an original contest of a will. If upon hearing the proofs of the parties the court shall decide that the will is, for any of the reasons alleged, invalid, or that it is not proved to

27 Snyder, 5,167; Wilson, 1,508; 28 Snyder, 5,168; Wilson, 1,509. California, 1,328 (Kerr), similar.

be the last will of the testator, the probate must be annulled and revoked; and if the court shall decide that the new will is valid, it may admit the same to probate in the same manner as originally upon the probate of a contested will.20

Sec. 742. Revocation being made, powers of executors cease -Acts done in good faith, executor not liable.

Upon the revocation being made, the powers of the executor or administrator with the will annexed, must cease; but such executor or administrator shall not be liable for any act done in good faith previous to the revocation.30

Sec. 743. Fees and expenses paid by contesting party or by party resisting revocation.

The fees and expenses must be paid by the party contesting the validity or probate of the will, if the will in probate be confirmed. If the probate be annulled and revoked, the costs must be paid by the party who resisted the revocation, or out of the property of the decedent, as the court directs.31

Sec. 744. Probate conclusive after one year.

If no person, within one year after the probate of a will, contests the same or the validity thereof, the probate of the will is conclusive, saving to infants and persons of unsound mind, a like period of one year after their respective disabilities are removed.32

29 Snyder, 5,169; Wilson, 1,510; California, 1,329 (Kerr), similar.

30 Snyder, 5,170; Wilson, 1,511; California, 1,331 (Kerr), identical; Estate of Graves, 6 Cal. App. 716, 96 Pac. 729; Estate of Crozier, 65 Cal. 332, 4 Pac. 109; Estate of Freud, 73 Cal. 555, 15 Pac. 135; Clements v. McGinn, 33 Pac. 920; Samson v. Samson, 64 Cal. 327, 30 Pac. 979.

31 Snyder, 5,171; Wilson, 1,512; California, 1,332 (Kerr), identical; Estate of Crozier, 65 Cal. 332, 4 Pac. 109; Goldtree v. McAlister, 83 Cal. 93, 24 Pac. 801; Estate of McKinney, 112 Cal. 447, 44 Pac. 743; Estate of Bump, 152 Cal. 271, 92 Pac. 642; Estate of Olmstead, 120 Cal. 447, 52 Pac. 804.

32 Snyder, 5,172; Wilson, 1,513; California, 1,333 (Kerr), identical;