LIBRARY OF THE LELAND STANFORD JR, UNIVERSITY. a 28,863 Entered according to Act of Congress, in the year 1858, By D. P. BELKNAP, In the Office of the Clerk of the District Court of the United States for the Northern Distriet of California. INTRODUCTION. The preparation of the present volume, was suggested by the lack of uniformity observable in proceedings under the statute relative to the estates of deceased persons, and the diverse and often conflicting views of practitioners as to the proper forms to be employed and the correct practice to be followed—matters which necessarily fell under my notice while acting as Clerk of the Probate Court in the city nd county of San Francisco. It occurred to me that a careful compilation of all the statutes of our State relating to proceedings in the Probate Courts, with the amendments thereto, accompanied by a body of forms and precedents, for all such proceedings, would, even if imperfectly executed, constitute a work useful to those having occasion to practice in these courts, and also to executors, administrators and guardians,and to all, in short, connected with or interested in the management and settlement of the estates of deceased persons. In the present work, which is prepared to meet the want thus existing, will be found a full collection of the various statutes of this State appropriate to the subject, with notes under the respective sections and chapters, of all decisions of our Supreme Court applicable, and of such other authorities within my reach as seemed in point. A large number of the latter are cases from the Texas Reports, the probate system of that State, in many respects, very closely resembling our own. The Forms contained in the Appendix are, in part, selected from the Records of the Probate Court of this County, and in part drawn from the Statute for the purpose of this work; and will be found, I think, to contain precedents for all ordinary proceedings embraced under the statutes selected. I have been much aided in my labors by Jas. F. Bowman, Esq., to whose assistancc I am greatly indebted for an early completion of the work. D. P. BELKNAP. SAN FRANCISCO, July 26th, 1858. ERRATA. Page 81, note to section 195, read “ See Sec. 136," for " See Sec. 131.". Page 81, in the last line of the note under section 195, read “ See Cole vs. Robertson, noted at the end of chapter vi." instead of “ See Cola vs. Robertson, noted under section 131.". Form No. 8, of Appendix, second paragraph, for “ Westchester, State of California," read “Westchester, State of New York." Form No. 77 of Appendix, to the affidavit of Robert C. Johnson, after the words “is justly due to this claimant” add “ that no payments have been made thereon, and that there are no offsets to the same to the knowledge of deponent." See the affidavit of N. Luning, in the preceding Form, No. 76. TABLE OF CONTENTS. INTRODUCTORY CHAPTER. THE ORGANIZATION AND JURISDICTION OF THE COURTS OF THIS STATE HAVING COG- NIZANCE OF PROBATE PROCEEDINGS. The District Courts—their jurisdiction with reference to probate proceedings, 21 The Probate Court, how constituted; the County Judge to be Probate Judge, 1 OF THE PROOF OF WILLS--PAGE 26. Wills to be delivered into the Probate Court within thirty days, etc., . Renunciation or petition to be filed, . . . . . Petition for probate where executor is not in possession of will, . Petition by party having interest in will, . Where will is alleged to be in possession of third person, . Application, orders, etc., may be made out of term time, Time to be fixed for proving will, and notice thereof, . . Citation to heirs, co-executors, etc., Subpænas to subscribing witnesses, . The hearing—who may appear and contest-appointment of attorney for In case will is not contested, Party contesting will must file grounds of opposition—issues of fact how SECTIOX. If will contested, all the subscribing witnesses to be examined, Proof of will, evidence of the execution, etc., Testimony so taken to be evidence in future litigation, . If proved, certificate to be attached, The will and testimony to be filed and recorded, and to be evidence, 25, 26 Foreign wills, and wills proved in other States-proceedings upon, 27, 28, 29 Will admitted to probate may be contested within one year thereafter-pro- If not contested within one year the probate conclusive, except as to in- Lost or destroyed will, proof of, etc. 37-40 To whom letters to issue upon probate of will, . letters of administration with the will annexed to issue, be filed, etc., . Effect of marriage of executrix, . Executor of executor not to administer, etc., . . . When minor is named executor, .. When all the executors named are not appointed, . Authority of administrators with the will annexed, .. Letters must be signed by the clerk, and be under the seal of the court, Form of letters testamentary and of administration, . To what persons administration shall be granted, and the order in which Surviving partner, in no case to administer, What persons not entitled to administer, Marriage of administratrix, effect of, If person entitled to administration a minor, . Application for letters how made, . Letters only granted a regular or special term of the cou Notice of application for letters, time of, etc., The minutes of the court conclusive as to notice, . If person entitled to administration fail to appear and claim letters, Death of intestate to be proved before grant of letters, . Grant to persons not entitled at request of person entitled, Petition for revocation of letters, and proceedings thereon, Form of letters of administration, Oath to be taken by administrator-bonds to be given, etc., Justification of sureties—sureties for portions, Citation and examination of sureties, etc., and proceedings if security not 76 |