either admitting the will to probate or rejecting it. If the will is admitted to probate, the judgment, will, and proofs of the subscribing witnesses must be recorded.

to be examined.

when.

SEC. 15. If the will is contested, all the subscribing Witnesses, who witnesses who are present in the county, and who are of and how many sound mind, must be produced and examined, and the Proof of handdeath, absence, or insanity of any of them must be satis- writing admitted factorily shown to the court. If none of the subscribing witnesses reside in the county 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.

SEC. 16. The testimony of each witness, reduced to writing and signed by him, shall be good evidence in any subsequent contests concerning the validity of the will, or the sufficiency of the proof thereof, if the witness be dead, or has permanently removed from the Territory.

Testimony refor future evidence.

duced to writing

If proved, certi

tached.

SEC. 17. If the court is satisfied, upon the proof taken, that the will was duly executed, and that the testa- ficate to be at tor at the time of its execution was of sound and disposing mind, and not acting under duress, menace, fraud, or undue influence, a certificate of the proof signed by the judge and attested by the seal of the court, must be attached to the will.

recorded.

SEC. 18. The will, and a certificate of the proof Will and proof thereof, must be filed and recorded by the clerk, and the to be filed and same, when so filed and recorded, shall constitute part of the record in the cause or proceeding. All testimony reduced to writing, shall be filed by the clerk.

recorded, when

SEC. 19. All wills duly proved and allowed in any wills proved in of the United States or Territories, or in any foreign other states to be country or state, may be allowed and recorded in the pro- and where. bate court of any county in which the testator shall have left any estate.

the production

SEC. 20. When a copy of the will and the probate Proceedings on thereof, duly authenticated, shall be produced by the execu- of a foreign will. tor, or by any other person interested in the will, with a petition for letters, the same must be filed, and the court or clerk must appoint a time for the hearing, notice whereof must be given as hereinbefore provided for an original petition for the probate of a will.

SEC. 21. If, on the hearing, it appears upon the face Hearing proofs of the record that the will has been proved, allowed, and of probate of admitted to probate in any of the United States or Terri- foreign will.

The probate may be contested

within one year.

Citation to be issued to parties interested.

tories, or in any foreign country, 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 Territory, it must be admitted to probate and have the same force and effect as a will first admitted to probate in this Territory, and letters testamentary or of administration issued thereon.

SEC. 22. When a will has been admitted to probate, any person interested who has not previously contested, 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 petition in writing, containing his allegations against the validity of the will or against the sufficiency of the proof, and praying that the probate may be revoked.

SEC. 23. 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 Territory, so far as known to the petitioner, or to their guardians, if any of them are minors, or to their personal representatives, if any of them are dead; requiring them to appear before the court on some day therein specified, to show cause why the probate of the will should not be revoked. SEC. 24. At the time appointed for showing cause, on proof of ser. or at any time to which the hearing is postponed, personal service of the citations having been made upon any person named therein, the court must proceed to try the issues of facts 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 reason invalid, or that it is not sufficiently proved to be the last will of the testator, the probate must be annulled and revoked.

The hearing had

vice.

On revocation of

of executor, etc.,

SEC. 25. Upon the revocation being made, the probate. powers powers of the executor, or administrator with the will ancease, but not nexed, must cease; but such executor or administrator shall not be liable for any act done in good faith previous to the revocation.

hable for acts

done in good

faith

SEC. 26. The fees and expenses must be paid by the party contesting the validity or probate of the will, if the will in probate is confirmed. If the probate is 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.

Probate, when

SEC. 27. If no person, within one year after the probate of a will, contest the same or the validity thereof, conclusive, sav the probate of the will is conclusive, saving to infants and ing clause as to persons of unsound mind, a like period of one year after others. their respective disabilities are removed.

Probate of Lost or Destroyed Wills.

infants and

Proof of lost or

be taken.

SEC. 28. Whenever any will is lost or destroyed, the probate court must take proof of the execution and validity destroyed will to 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, and signed by the witnesses.

Must have been

time of death.

SEC. 29. No will shall be proved as a lost or destroyed will, unless the same is proved to have been in in existence at 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 creditable witnesses.

To be certified,

letters thereon

SEC. 30. When a lost will is established the provisions thereof must be distinctly stated and certified by the judge recorded, and under his hand and the seal of the court, and the certificate granted. 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 Section 16 of this Chapter.

acts of executors

tors during pro

SEC. 31. If, before or during the pendency of an Courts to reapplication to prove a lost or destroyed will, letters of ad- strain injurious ministration are granted on the estate of the testator, or or administra letters testamentary of any previous will of the testator ceedings, etc. 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.

The Proof of Nuncupative Wills.

Nuncupative

SEC. 32. Nuncupative wills may at any time, within six months after the testamentary words are spoken by the wills, when and decedent, be admitted to probate, on petition and notice as provided for the probate of written wills. The petition,

how admitted to probate.

Additional requirements in

probate of nuncupative wills.

Contest, etc.,
to conform to
provisions as to
other wills.

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.

SEC. 33. The probate court must not receive or entertain a petition for the probate of a nuncupative [will] until the lapse of ten days from the death of the testator, nor must such petition at any time be acted on until 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 Territory or county interested in the estate, are notified as hereinbefore provided.

SEC. 34. 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.

To whom letters

issue.

CHAPTER III.

Of Executors and Administrators—Their Letters, Bonds,
Removals, and Suspensions.

SEC. 1. The court admitting a will to probate, after on proved will to 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 objection is made, as provided in Section 3 of this Chapter.

Who are incompetent as executors or administrators, etc.

SEC. 2. 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 or integrity.

If the sole executor or all the executors are incompetent, or renounce, or fail to apply for letters, or to appear and qualify within thirty days after his or their appointment, letters of administration, with the will annexed, must be issued as designated and provided for the granting of letters in cases of intestacy.

SEC. 3. Any person interested in a will may file ob- Interested par. jections in writing, to granting letters testamentary to the ties may file persons named as executors, or any of them, and the ob- objections. jections must be heard and determined by the court. A

petition may, at the same time, be filed for letters of administration, with the will annexed.

woman ceases.

SEC. 4. When an unmarried woman, appointed ex- when authority ecutrix, marries, the court or judge thereof may upon the of unmarried motion of any person interested in the estate, revoke her Married woman authority and appoint another person in her place. When tray, be execu a married woman is named in a last will, as executrix, she may be appointed and serve in every respect as a femme sole.

SEC. 5. 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.

etc.

Executor of an executor.

minor, etc.

SEC. 6. Where a person absent from the Territory, Letters of ad or a minor, is named executor, if there is another executor ministration, to 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.

of executors, valid.

SEC. 7. When all the executors named are not Acts of a portion appointed by the court, those appointed have the same authority to perform all acts and discharge the trust required by the will as effectually for every purpose as if all were appointed, and should act together where there are two executors or administrators. The act of one alone shall be effectual if the other is absent from the Territory, or laboring under any legal disability from serving, or if he has given his co-executor or co-administrator authority in writing to act for both, and where there are more than two executors or administrators, the act of a majority is valid.

Authority of

with will

SEC. 8. Administrators, with the will annexed, have the same authority over the estates which executors named administrators in the will would have, and their acts are as effectual for annexed. Letall purposes. Their letters must be signed by the clerk of ters, how issued. the court, and bear the seal thereof.