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Lewis V. Luckett, 32 D. C.
inafter] herein specially conferred, shall have power to enforce its judgments, orders, and decrees in like manner as orders and decrees may be enforced in the equity court. Sec. 130. CITATION. Upon the filing of a petition for App., 188; 7 D. C. probate of a will a citation shall be issued to all persons App. 351; 30 Stat., 434; Md. Who would be entitled to or interested in the estate of the act 1798, ch. 101, testator in case such will had not been executed to appear in said court on a day named, not earlier than ten days, exclusive of Sundays, after the filing of said petition, and show cause why the prayer of the petition should not be granted. If said citation shall appear from the return thereof to have been served upon all said persons at least five days before the day named as aforesaid, the said court shall proceed, if no caveat be filed, to take the proofs of the execution of said will. But if any of the parties interested, as aforesaid, as heirs, next of kin, or otherwise, shall be returned "Not to be found," the said court shall cause not less than thirty days' notice of the application of such probate to be published once in each of three successive weeks in some newspaper of general circulation in said District, and may order such other publication as the case may require, and shall cause a copy of such publication to be mailed to the last known post-office address of each of the parties so returned not to be found.
In all cases where it is made to appear to the satisfaction of the court that all or any of the next of kin or heirs at law of the deceased are unknown, such unknown next of kin or heirs at law may be proceeded against and described in the publication of notice hereinbefore provided for as "the unknown next of kin," or "the unknown heirs at law, as the case may be, of the deceased, and by such publication of such notice under such designation such unknown next of kin and heirs at law shall be as effectually bound and concluded as if known and their names were specifically set forth in said order of publication.
In case any will shall have been heretofore admitted to probate upon publication against unknown heirs or next of kin, any person interested may file a petition for further probate of such will, alleging that the heirs at law or next of kin of the deceased, or some of them, as the case may be, are unknown, and upon satisfactory showing being made to the court publication of notice may be made against the unknown next of kin or heirs at law of the deceased; and upon such publication being made, as required by the court, a decree may be made confirming such previous probate, and such decree so made shall be as effectual as if the said heirs at law or next of kin were named in the order of publication. (32 Stat., part I, p. 526.)
[If the parties in interest, or any of them, be unknown, upon statement of that fact in the petition under oath, they may be described therein, and in the notice by publication, as the unknown heirs and next of kin of the decedent, with like effect as if known and specifically named in the petition, notice, and proceedings.]
D. C. 9; 196
Sec. 131. PROBATE.-On the day appointed as afore- Lipphard v. said, or such subsequent day as the court may appoint, App., 360; S. 'C., due proof of such publication and mailing being made, the 209 U. S., 264; 22 court shall proceed to take proof of the will. All the U. S., 28. witnesses to such will who are within the District and competent to testify must be produced and examined, or the absence of any of them satisfactorily accounted for.
Sec. 132. ATTESTING WITNESSES.-In case the will contains a devise of real estate, and any attesting witness thereto residing in the District is unable, from sickness, age, or other cause, to attend court, the register of wills may, with such will, attend upon said witness and take his testimony. If the testimony of resident attesting witnesses or witness to such will shall have been taken, and any other such witness to said will shall reside out of the District or be temporarily absent therefrom, but within the United States, it shall be sufficient to prove the signature of such witness so out of the District.
31 D. C.
If the sole witnesses to such will shall be out of said Dis- Secs. 131, 134; trict as aforesaid, or if one or more should be within the 27 D. C. App., 535 United States and one or more be in some foreign country, 28 D. CAP., 355; then it shall be sufficient to take the testimony of any 264. one or all within the United States, as the court may determine, and to prove the signatures of those whose testimony is not required to be taken.
If all such witnesses shall be out of the United States, then it will be sufficient to take the testimony of such of them as the court may require, and to prove the signature or signatures of the others.
The testimony of such witnesses out of the District to be taken hereunder shall be under a commission issued by the court to one or more competent persons, and in such case the original will or codicil shall accompany the commission and be exhibited to the witnesses.
No notice need be given of the time and place of taking such testimony, unless in a case in which probate is opposed.
Sec. 133. WHO MAY APPEAR. Any person, although 8 D. C. App., not cited, who may be interested in sustaining or defeat- 452; 30 Stat., 434. ing the will may appear and support or oppose the application to admit the same to probate.
Sec. 134. ADMISSION TO PROBATE.-If, upon hearing Lipphard v. Humphrey, 28 D. the proofs submitted, the court shall be of opinion that the c. App., 355; 8. will was duly executed and the testator was competent to C., 209 U. S., 264. execute the same, and no caveat shall be filed against the admission of the same to probate, the court shall decree that the said will be admitted to probate and record.
Sec. 135. If all parties interested adversely to the will30 Stat., 434; Safe Deposit Co. shall waive the notice aforesaid and consent that the will. Heiberger, 19 D. C. App., 506. be admitted to probate and record, it may be so admitted to probate and record without the proceedings directed as aforesaid: Provided, That in no case shall any will or testament be admitted to probate and record save upon formal proof of its proper execution.
Vestry v. Bos
wick, 8 D. C.
Sec. 136. CAVEAT.-If, upon or prior to the hearing of App., 452; 30 L. the application to admit the will to probate, any party in interest shall file a caveat in opposition, duly verified, and setting forth facts inconsistent with the validity of the will, the said will shall not be admitted to probate until the issues raised by said caveat shall be determined, as hereinafter directed.
Sec. 137. If, upon the hearing of the application to admit a will to probate, the court shall decree that the same be admitted to probate, any person in interest may file a caveat to said will and pray that the probate thereof may be revoked at any time within three months after such decree, if it be a will of personal property, and as far as it is a will of personal property; and if it be a will of real estate, and as far as it is such will of real estate, 30 L. R., 345; 30 any person interested actually served with process or
personally appearing in such proceedings may file such caveat within one year after such decree; any person interested who at said time was returned "Not to be found" and was proceeded against by publication may file such caveat within two years after such decree; and any person interested who at the time of said decree is within the age of twenty-one years may file such caveat within one year after he becomes of age.
Sec. 138. INFANTS INTERESTED.-Whenever it shall appear that any party interested as aforesaid is under age, or non compos, the court shall appoint a guardian ad litem to represent said party at the hearing of the application to admit the will to probate, and with authority to file a caveat, as he may be advised, in behalf of said party.
Secs. 91, 102, 104, 162; 30 Stat., 434.
Act of Md. 1798,
Sec. 139. PLENARY PROCEEDINGS.-The court may, in ch. 101, secs. 16, all cases of controversy therein, direct a plenary proceeding to be had, by bill or petition, to which there shall be answer under oath, which may be compelled by the usual process, and all the depositions shall be taken down in writing and filed; or, if either party shall require it, the court shall direct an issue to be made up to be tried by a jury.
Sec. 105; Safe Sec. 140. TRIAL OF ISSUES AS TO WILLS.-Whenever Deposit Co. V. Heiberger, 19 D. any caveat shall be filed issues shall be framed under the C. App., 520, 524; direction of the court for trial by jury: Provided, That in 30 D. C. App., 588; all cases in which all persons interested are sui juris and 17 D. C. App., 128; before the court the issues may be tried and determined
30 D. C.
32 C. 192;
S. C., 188 U. S., by the court, without a jury, upon the written consent of
30 L. R., 345;
38 L. R., 108; 30 all such parties. If they are to be tried by a jury they shall be triable in said probate court; and at least ten days prior to the time of trial all of the heirs at law or next of kin of the decedent, or both together, as the case may require, and all persons claiming under the will shall be each served with a copy of said issues and a notification of the time and place of the trial thereof. If any one of them be an infant or of unsound mind he shall have
a guardian ad litem appointed for him by the court before such trial shall proceed. If, as to any party in interest, the notification shall be returned "Not to be found," the court shall assign a new day for such trial, and shall order publication, at least twice a week for a period of not less than four weeks, of [a copy of the issues and notification of trial] the substance of the issues and of the date fixed for the trial thereof in some newspaper of general circulation in the District, and may order such further publication as the case may require. And the supreme court of the District of Columbia may from time to time prescribe and revise rules and regulations for service personally upon such party outside of the District of Columbia of a copy of such issues and notification. Personal service on absent parties shall not be essential to the jurisdiction of the court. Before the time of trial the justice holding said court shall direct twenty-four jurors to be drawn for service in said court, having the qualifications prescribed by law, in the manner provided by law for the drawing of jurors to serve in the circuit court. The proceeding for impaneling a jury for the trial of said issues shall be the same as if they were being tried in the said circuit court. In all cases in which such issues shall be tried the verdict of the jury and the judgment of the court thereupon shall, subject to proceedings in error and to such revision as the common law provides, be res judicata as to all persons; nor shall the validity of such judgment be impeached or examined collaterally. When a jury is sworn for such trial the other jurors who have been summoned, but not sworn for such trial, shall be discharged and their names returned to the jury box. Any jury so sworn may also be employed in the trial of other issues pending in said court not relating to wills, and also, if the parties interested shall consent, in the trial of issues relating to wills other than those for the trial of which they were specifically summoned. Any jury summoned for service in any of the circuit or criminal courts of the District may, with the concurrence of the justice presiding in said court, be used for the trial of issues in the probate court. (32 Stat., 526.)
Norris Peters Co.,
S. 186 U. S.,
128; S. C., 188 U.
Sec. 141. RE-PROBATE OF WILLS AFFECTING REAL Young et al v. ESTATE. That the foregoing sections shall not apply to 27 D. C. App., 140, wills and testaments offered for probate prior to the DC. APP: 238; eighth day of June, anno Domini eighteen hundred and 114:17 D. C. App. ninety-eight, and in cases of intestacy shall apply only s., 510; 30 Stat., to the estates of such persons as shall have died after 134. said date and shall hereafter die: Provided, That any person interested under any will filed in the office of the register of wills for the District of Columbia prior to said date may offer the same for probate as a will of real estate, whereupon such proceedings shall be had as by this code are authorized in regard to wills offered for probate after said date.
13 D. C. App., 392; S. C., 177 U..
Sec. 142. TRIAL OF OTHER ISSUES.—The trial of other S., 214; 30 D. C. issues pending in said court than such as relate to the execution or validity of wills shall also be had in said court. For the trial of issues not relating to wills the justice holding said court shall have authority to fix the time of trial and determine the notice thereof to be given.-Act of June 30, 1902 (32 Stat., Part I, p. 526).
[Sec. 142. TRIAL OF OTHER ISSUES.-The trial of other issues, pending in said court, than such as relate to the execution or validity of wills shall also be had in said court; and no person shall be required to serve as a juror more than twenty secular days in any one year, except in a trial pending and not determined when said term of twenty days expires; and such length of service shall exempt him from further service in the supreme court of the District for one year from the commencement of said service.
For the trial of issues not relating to wills the justice holding said court shall have authority to fix the time of trial and determine the notice thereof to be given.]
Thorn v. Thorn, 35 L. R.,388; Md.
Sec. 143. COSTS.-The said court shall have authority act 1798, ch. 101, to render judgment for costs against the unsuccessful party in any trial] proceeding conducted in said court. and to issue execution therefor.
Md. act 1798, ch. 101, sec. 12.
Sec. 144. DEPOSITIONS, JUDGMENT, AND APPEAL.—The said court shall have authority to issue commissions to take the testimony of nonresident witnesses, and such. depositions, as well as depositions de bene esse, taken according to law, may be read at the trial of any issue in said court. On the trial of any such issue exceptions may be taken to the rulings of the court, and the said court may set aside the verdict and grant a new trial for the same causes and in the same manner as in case of a trial in the circuit court. Unless and until the same be reversed, any final order or decree admitting a will to probate shall be conclusive evidence of the validity of such will in any collateral proceeding in which such will may be brought into question, and a transcript of the record of such will, and of the decree admitting the same to probate shall be sufficient proof thereof.
Sec. 145. ARBITRATION.-The said court shall have power, with the consent in writing of both parties, to arbitrate between a complainant and an executor or administrator, or between an executor or administrator and a person against whom the estate represented by him has a claim, or, with like consent, may refer the matter in dispute to an arbitrator. If reserved by the parties in their submission, exception as to matters of law may be filed to the award of such arbitrator, and the court may confirm or overrule the award, and said award, when confirmed, shall be conclusive between the parties.
119; Sec. 146. SALE OF REAL ESTATE. The said court shall
18 U. S., 510: 23 have plenary authority to administer also the real estate
S. C. Rep., 393 17 situated in the District of Columbia of decedents so far as
D. C. 128,
238; 27 D. C. App., may be necessary for the payment of debts and legacies, 140; 30 Stat., 434. and to distribute among those entitled thereto any sur