Sec. 745. Lost or destroyed will-How probated. Whenever any will is lost or destroyed, the county court must take proof of the execution and validity thereof, and establish the same, notice to all persons interested being first given, as prescribed in regard to proofs of wills in other cases. All the testimony given must be reduced to writing, signed by the witnesses, filed and preserved.33 Sec. 746. Lost or destroyed will must have been in existence at death of testator. No will shall be proved as a lost or destroyed will, unless the same is proved to have been in existence at the time of the death of the testator, or is shown to have been fraudulently destroyed in the lifetime of the testator, nor unless its provisions are clearly and distinctly proved by at least two credible witnesses.34 Sec. 747. Lost will established-Provisions distinctly stated recorded-Letters and certified-Filed and When a lost will is established, the provisions thereof must be distinctly stated and certified by the judge of the county court, under his hand and the seal of the court, and the certificate must be filed and recorded as other wills are filed and recorded, and letters testamentary or of administration with the will annexed, must be issued thereon in the same manner as upon wills, produced and duly proved; the testimony must be reduced to writing, signed, certified, and filed as in other cases, and shall have the same effect as evidence as provided in sections from 5157 to 5162, inclusive.35 Samson v. Samson, 64 Cal. 327, 30 Pac. 979; Clements v. McGinn, 33 Pac. 920; Estate of Freud, 73 Cal. 555, 15 Pac. 135; Estate of Pritchett, 51 Cal. 568, 52 Pac. 94; Estate of Maxwell, 74 Cal. 384, 16 Pac. 33 Snyder, 5,173; Wilson, 1,514. 34 Snyder, 5,174; Wilson, 1,515; California, 1,339 (Kerr), similar. 35 Snyder, 5,175; Wilson, 1,516. Sec. 748. Pending application to prove lost or destroyed will, court may restrain administrators. If before or during the pendency of an application to prove a lost or destroyed will, letters of administration are granted on the estate of the testator, or letters testamentary of any previous will of the testator are granted, the court may restrain the administrators or executors so appointed from any acts or proceedings which would be injurious to the legatees or devisees claiming under the lost or destroyed will.38 Sec. 749. Nuncupative wills-Probate of-Petition-Testamentary words. Nuncupative wills may at any time, within six months after the testamentary words are spoken by the decedent, be admitted to probate on petition and notice as provided for the probate of wills executed in writing. The petition, in addition to the jurisdictional facts, must allege that the testamentary words or the substance thereof, were reduced to writing within thirty days after they were spoken, which writing must accompany the petition."7 Sec. 750. Court must not entertain petition until lapse of fifteen days-Interested parties notified. The county court must not receive or entertain a petition for the probate of a nuncupative will until the lapse of fifteen days from the death of the testator, nor must such petition be at any time acted on, unless the testamentary words are, or their substance is, reduced to writing, and filed with the petition, nor until the surviving husband or wife, if any, and all other persons resident in the State or county, interested in the estate, are notified, as provided in sections 5145 to 5156, inclusive.38 36 Snyder, 5,176; Wilson, 1,517. 37 Snyder, 5,177; Wilson, 1,518. 38 Snyder, 5,178; Wilson, 1,519. Sec. 751. Contest of probate or nuncupative wills-How con ducted. Contests of the probate of nuncupative wills and appointments of executors and administrators of the estate devised thereby must be had, conducted and made as herein before provided in cases of the probate of written wills: Provided, that double the period allowed for the petition of revocation of the probate of a written will shall be allowed in which to petition for the revocation and annulling of the nuncupative will.39 Sec. 752. Court admitting will to probate must issue letters. The court admitting the will to probate after the same is proved and allowed, must issue letters thereon to the persons named therein as executors, who are competent to discharge the trust, who must appear and qualify unless objections be made as provided in the second section following." Sec. 753. Persons competent to serve as executor. No person is competent to serve as executor who at the time the will is admitted to probate, is: 1. Under the age of majority. 2. Convicted of an infamous crime. 3. Adjudged by the court incompetent to execute the duties of the trust by reason of drunkenness, improvidence, or want of understanding and integrity. If the sole executor or all the executors are incompetent, or renounce or fail to apply for letters, or to appear and qualify, letters of administration with the will annexed must be issued.41 Sec. 754. Who may file objections to granting letters testamentary. Any person interested in a will may file objections in writing, to granting letters testamentary to the persons named 39 Snyder, 5,179; Wilson, 1,520. 40 Snyder, 5,180; Wilson, 1,521; California, 1,349 (Kerr), similar. 41 Snyder, 5,181; Wilson, 1,522; California, 1,350 (Kerr), similar. as executors, or any of them; and the objections must be heard and determined by the court. A petition may, at the same time, be filed for letters of administration, with will annexed.42 Sec. 755. No executor of an executor authorized to administer estate of first testator. No executor of an executor shall, as such, be authorized to administer on the estate of the first testator, but on the death of the sole or surviving executor of any last will, letters of administration with the will annexed, of the estate of the first testator, left unadministered, must be issued.43 Sec. 756. Qualified executor may act during minority or absence of another executor. Where a person absent from the State, or a minor, is named executor, and there is another executor who accepts the trust and qualifies, the latter may have letters testamentary and administer the estate until the return of the absentee, or the majority of the minor, who may then be admitted as joint executor. If there is no other executor, letters of administration with the will annexed, must be granted; but the court may, in its discretion, revoke them on the return of the absent executor, or the arrival of the minor at the age of majority." Sec. 757. When all executors named are not appointed, those appointed may act-When coexecutor may act for all. When all the executors named are not appointed by the court, those appointed have the same authority to perform all the acts and discharge the trust required by the will, 42 Snyder, 5,182; Wilson, 1,523. 43 Snyder, 5,184; Wilson, 1,525; California, 1,353 (Kerr), identical; Wetzler v. Fitch, 52 Cal. 638. 44 Snyder, 5,185; Wilson, 1,526; California, 1,354 (Kerr), identical; Estate of Brown, 80 Cal. 381, 22 Pac. 233; Estate of Kelley, 122 Cal. 379, 55 Pac. 136. as effectually for every purpose as if all were appointed and should act together; when there are two executors or administrators, the act of one alone shall be effectual, if the other is absent from the State, or laboring under any legal disability from serving, or if he has given his coexecutor or coadministrator authority, in writing, to act for both; and when there are more than two executors or administrators, the act of a majority of them is valid."5 Sec. 758. Administrators with will annexed have same authority as executors. Administrators with the will annexed have the same authority over the estates which executors named in the will would have, and their acts are effectual for all purposes. Their letters must be signed by the judge of the county court, and bear the seal thereof.46 Sec. 759. Form of letters. Letters testamentary must be substantially in the following form: The last will of A. B., deceased, a copy of which is hereto annexed, having been proved and recorded in the county court of the county of -, C. D., who is named therein, is hereby appointed executor. WITNESS, G. H., judge of the county court of the county of with the seal of the court affixed, the A. D. 19-. day of (Seal and Official Signature of the Judge.) 47 45 Snyder, 5,186; Wilson, 1,527; California, 1,355 (Kerr), identical; Willis V. Farley, 24 Cal. 490; Estate of Carver, 123 Cal. 102, 55 Pac. 770; Hope v. Jones, 24 Cal. 90; Avila v. Burnett, 33 Cal. 658; Estate of Osborn, 87 Cal. 1, 25 Pac. 157, 11 L. R. A. 264; Estate of 46 Snyder, 5,187; Wilson, 1,528; California, 1,356 (Kerr), similar. 47 Snyder, 5,188; Wilson, 1,529. |