to the devisee, unless it clearly appears from the will that he intended to pass a less estate.

All property acquired after the making of a will is to pass by it, if it clearly appears from the will that such was the intention of the testator or testatrix.

All wills made in any other state of the union, or in a foreign country, to be valid and operate on either real or personal property in this state, must be made in the manner pointed out.

A will made out of the state by a married woman who makes it under a contract of marriage, if the contract is valid where the will is made, and by it the husband gives the authority to her to make a will, then if it is made in conformity with the directions given, it will operate to transfer property in this state, either real or personal, but if the wife. has no such power given her by her contract with her husband, his written consent is necessary.(a)

PROBATE OF WILLS.

Proof taken and probate entered of all wills by the probate court of the state where a person resided at the time of his death, whether he died at home or elsewhere, and shall have made a will, proof, and probate of the same is to be made before the probate court of the county.

Where a person may die out of the state and has no residence in it, but has property in it, and shall have made a will, the proof and probate of his will is to be before the court of the county where any of his property may be situated; when a person shall have property in the state, being a non-resident, and shall die in the county where some or all of his property is situated, the court in the county where he dies is to take proof and enter probate of his will, if he made one; but if such person shall have died in a county other than the one where his property is situated the latter is to take the proof and probate of his will. Where a person that is possessed of

(a) 1 California Statutes, 177 to 179.

property in different counties of the state, and is not a resident of the state, shall die out of the state, and shall have made a will, proof and probate of it may be by the court of any county, and the court before which application is first made has exclusive jurisdiction in the matter. Where the probate judge is a witness to a will, executor or trustee, legatee or devisee, probate of it cannot be made by such judge, nor can he grant letters testamentary to the executor, or letters of administration with the will annexed; where that is the case, the probate court of the adjoining county has jurisdiction.(a)

PRODUCTION OF WILLS.

The person having possession of a will is to deliver the same to the probate court that may have jurisdiction of the matter, or to the executor named therein, within thirty days. after he shall know of the testator's death. The same rule applies to an executor who has a will in his possession. Any person who fails to comply with the rule is liable to the parties interested in the will to the extent of the damages sustained by reason of the non-production of the will, and if any person having the possession of a will, fails to deliver the same within the time limited, then the court on petition being filed by the executor named in a will or any person interested in it, for that purpose may order the will to be produced at a time to be named in the order. A copy of the order is to be served on the person having the will; if after service of the order he refuses to deliver the will, the court may issue a warrant and have him committed to the jail, and kept in confinement until the will is produced. Application for all orders for the production of a will may be made to the judge out of term, and he may make and enforce them also out of term time.(b)

(a) 2 Cal. Stat., 48, 249, 250, 251, 252.

(b) 2 Cal. Stat., 449.

PROOF OF A WILL.

The court having jurisdiction of a will, and the same being in his possession, may appoint any time for its proof, not less than ten nor more than thirty days, and shall cause notice thereof to be published twice a week in some paper published in the county, but if no paper is published in the county, then by written notices posted up in three public places in the county, and in addition to the notice thus to be given, citations are to issue to the heirs of the testator residing in the county, if any, and to the executors named in the will, if they have not as yet applied for letters testamentary, and also subpoenas for the subscribing witnesses, at the time appointed for the proof of the will or any other time to which it may be construed. Notice having been given, proof of it is to be made, and evidence of the service of the citations taken, after which the court is to ascertain if any person interested in the will whether minors or others, are non-residents of the county, if so, the court is to appoint some attorney who will act for and represent them in the matter, and further to ascertain if any person contests the proof and probate of the will. If no contest of the proof and probate of the will is made, the court is to proceed and take the proof of one of the subscribing witnesses to the will, which is to be reduced to writing and signed by the witness. If the witness shall testify that the will was executed by the testator in the manner pointed out, and was of sound mind and under no restraint at the time, the court is to admit the same to probate. The court is then to attach to the will a certificate that it has been proven, signed by the judge and attested by the seal of the court, which together with the testimony taken, is to be filed with the clerk, who is to record them in a book provided for that purpose.

But if the proof and probate of the will shall be contested, which can be done by any person interested in it, by filing a written statement of the grounds he does it upon, and filing the same with the court, then the court upon the will being contested is to require all the subscribing witnesses to the

will in the county to appear and testify touching the same; their death, absence or insanity, will excuse them, but the disability must be made out satisfactorily to the court by proof before he will proceed without their testimony; if none of the subscribing witnesses reside in the county, or are excused from testifying the court may admit the evidence of other witnesses as to the surety of the testator, and execution of the will or of the testator's handwriting, or of that of the witnesses or one of them, the testimony to be reduced to writing and signed by the witnesses who shall give it. If upon hearing the proof and allegation of the parties the court shall be of opinion that the will was executed by the testator and at the time he was under no restraint, and of sound mind, and the will is executed as pointed out, the will is to be entered of probate, and the certificate attached to the will, which together with the testimony is to be filed with and recorded by the clerk. In this way wills are to be proven and entered of probate, after which letters testamentary may issue to the executor or executors, or letters of administration with the will annexed may issue to an administrator; but before we proceed to state how that is done we will consider the effect of such proof and probate of the will.(a)

HOW PROOF AND VALIDITY MAY BE CONTESTED.

The proof and validity of a will may be contested at any time within twelve months after the decease of the testator by any person interested in it. To do it the person must file in the court where probate of it was made, a petition in writing containing his allegations against the validity or sufficiency of the proof of the will and praying that probate thereof be revoked. Upon that being done a citation is to issue to the executor or administrator, as the case may be, and to all the legatees named in the will residing in the state, or to their guardians, if they are minors and have guardians, or to their personal representatives if any are dead, requiring them to appear at

(a) 2 California Statutes, 449 to 452.

some regular term of the court, to show cause why the probate of the will should not be revoked.

At the time appointed for showing cause or at any time thereafter to which it may be construed, personal service of the citations having been made and evidence of it given to the satisfaction of the court, the court is to ascertain whether there are any minors served with citation who have no guardians, if so then the court is to appoint some attorney who will act for them in the matter. Then the court is to proceed and hear the proof and allegations of the parties, after which if the court shall think the will valid and the proof was sufficient he is so to decide confirming the probate dismissing the petition and rendering judgment against the petitioner for the costs; but if the will from some cause is invalid or the proof was not sufficient, the probate is to be revoked and judgment against the legatees for the costs to be paid out of the estate. The revocation of a probate of a will suspends the powers of the executor or administrator, but no liability attaches to them on account of their acts previous thereto, done in good faith.

If the validity of a will or the proof of it is not so contested, before the proof taken or within the year thereafter, the validity of the will and sufficiency of proof thereof is conclusive as to the rights of all persons, except as to infants, married woman, and persons of unsound mind; they and each of them have one year after their disabilities are removed to contest the same.(a)

PROOF OF LOST WILLS.

The proof of the execution of a lost will is the same as one in existence. But before entering upon the proof of the execution of it, it must be satisfactorily proven to the court that it was in existence at the death of the testator, or fraudulently destroyed in his life time, and its provisions must be clearly and distinctly proven by at least two credible wit nesses. During the pendency of the application to prove the

(a) 2 California Statutes, 450.