waive formal notice and may unite in the petition for proof. Much time may be saved by this method where it is possible.

If the attendance of the witnesses to the will cannot be otherwise obtained, a subpoena can be had and attendance thus be compelled. Where the will is not contested, it may be probated on the testimony of only one of the subscribing witnesses. When the witnesses are outside the jurisdiction of the court of probate, a person, usually a notary public, is appointed in the place where the witnesses reside to take their depositions. If it should happen that the witnesses are dead or incompetent, or refuse to testify, the mental capacity of the testator and due execution of the will may be proved by other witnesses.

§ 39. Who Are Cited to Attend the Probate

When a petition asking for probate is filed, it also asks that a citation to all interested be issued by the court. This is an order to all parties who may be interested in the settlement of the estate to appear at the hearing and state the causes, if any, why the request of the petitioner should not be granted. It then sets forth the petitioner's reason for asking for a settlement of the estate.

Those to be cited are: (1) generally, all persons named in the will as devisees or as legatees; (2) all those who would have inherited any of the property if there had been no will. These last would be either heirs or next of kin.

Heirs are those who would take the real estate by descent. The word is also loosely used to designate those who would take any of the personal property by distribution. It will include in this sense a surviving husband or wife.

Next of kin include the nearest blood relations. In New York these are entitled to inherit in the following order:

1. Any children or their descendants.

2. The father.

3. The mother, brothers, or sisters.

4. Collateral relations not further removed than nephews or nieces.

If there were children or their descendants living, it would not be necessary to cite any of the more remote kindred, and so on with each class.

If any of the persons cited be infants, the citation will state this fact so that they may be represented by their guardians if they have such, and if not, so that the court may appoint a guardian or guardians ad litem (during the suit).

A petitioner must state all necessary facts and must give the names and addresses of all the interested parties, to the best of his knowledge. The court when preparing the citations takes this petition as a working basis, and hence the need for accuracy. If, however, it should happen that some of the relatives or interested parties were not cited, and it could be proved that they did, in spite of this, have knowledge that an action for probating the will was pending, and they failed to appear at such time, they would be barred from any action contesting the probate.

Service of a citation may usually be made in three ways, namely: personally, by substitution, and by publication. Service by substitution is used where after diligent effort it has been found impracticable to serve the citation personally. In such case the order or a copy must be left at the residence of the person cited, with someone of proper age, or, if no one can be found to take the citation, by attaching the order to the door of said residence, and mailing another copy to the same address.

Citation by publication is where the person so cited is outside the state, or where after search the address of the person could not be ascertained by the petitioner.

It must, of course, be remembered that this is a general

treatment of the subject of citations, and that it is a matter of procedure usually handled by the courts themselves and is for that reason liable to vary in the different states.

§ 40. Examination of Witnesses

On the day set for the hearing, all the parties having been duly notified, the witnesses will be examined as to the capacity of the testator and the legality of the will. If any of the parties desire to contest the will, they should interpose at this point. Where this is done the will is not admitted until such objections as may be urged by the contesting parties are tried and determined. A will contest may be a protracted and tedious proceeding.

If possible, all the witnesses should be in attendance. If they or any of them cannot be present or are dead, their signatures, and also the signature of the testator, may be proved by witnesses familiar with their handwriting, or their evidence may be taken by deposition. This is done by the court appointing a notary or some other responsible person in the place where the witnesses live to take their evidence, which is written out and verified and then sent to the court of probate.

The judge of probate must be satisfied by the examination of the witnesses that the will was duly executed by the testator, and that the testator was sane, competent, and not acting under compulsion or undue influence. Subscribing witnesses may give their opinion as to the sanity or insanity of the decedent, but do not have to give the facts upon which their opinion was based, for the fact that they are such witnesses is deemed to qualify them in this matter.1

As the witnesses when signing the will supposed, or are presumed to have supposed, the testator sane, their testimony to the contrary will have less effect than the testimony of others, not witnesses to the will, that the testator was sane. 1 Williams v. Spencer, 150 Mass. 346.

In most of the states, a person who is not a subscribing witness or an expert called in on the matter, may not testify unless he can show that his opinion is based on actual personal knowledge. In Massachusetts no one but an expert or a subscribing witness may testify as to his opinion.

The procedure as to the examination of witnesses, crossexamination, compulsory attendance of witnesses, admissibility of the evidence, etc., is governed by the same rules that are in force in other courts.

When the judge is satisfied as to all essential points, he will either order that the will be admitted to probate, or reject it and order an administrator appointed to settle the

estate.

§ 41. Proving a Lost Will

A will that has been lost, stolen, or fraudulently destroyed may be admitted to probate. In such case a clear copy would count for much. The proof would have to be decisive. It might be proved by two or more witnesses, not necessarily subscribing witnesses, who could testify to both the original will and its contents.

It is held in some states that a will may not be established unless the entire contents can be given, and in other states it may be established where only part of the contents can be proved. The evidence in all cases of lost wills must be definite and certain.

Where the will was in existence at the time of the testator's death, and has since disappeared, it is obvious that such loss should not be allowed to defeat the testator's intention. In such a case the lawyer who drafted the will should produce his office copy, and his testimony and the testimony of his stenographer would probably be sufficient.

Where a will known to have been executed cannot be found after the death of the testator, the case is more diffi

cult. The testator might have destroyed it himself with intent to revoke it. For this reason a testator who desires to revoke a will should not destroy it, but should cancel it, or cut out the signature, and note on the will in his own writing the date and the fact that he himself has canceled it.

An action for proving a lost will is started by a petition setting forth the fact of the lost will and such other facts as are depended upon for evidence.

§ 42. Issuance of Letters Testamentary

If the judge of probate is satisfied as to the validity of the will, he admits it to probate, and if the executor or executors named therein are citizens of the state, of age and of good character, they will, on filing a bond, the amount of which is fixed by the court, be entitled to letters testamentary authorizing them to act in all matters relating to the settlement of the estate so far as personal property is concerned.

The executors of a person's will are, of course, appointed to the office by the testator himself. Such appointment, however, as seen above, is not final, but is subject to the supervision of the court. The court will take into consideration the character, ability, and willingness of the person designated to serve, and his citizenship in the state, and also the willingness of the interested persons to have him serve in such capacity. Once decided as to these points, the court will issue letters testamentary, or a document to the same effect showing the approval of the court and the fact that it confirms him as

an executor.

Before the issuance of letters testamentary it is the executor's duty to do everything necessary to preserve the estate, but he has no power to dispose of any part of it except in the payment of funeral expenses. He should give notice of the death to life insurance companies in which the deceased had policies. Ordinarily he takes the initiative in getting the