Citation, how directed, 1707. Citations must be directed to the person to be cited, signed by the Clerk, and issued under the to contain. seal of the Court, and must contain: and what Citation, how issued. Citation, how served. Personal notice given by citation. Citation to be served five days before return. One description of real estate 1. The title of the proceeding; 2. A brief statement of the nature of the proceeding; 3. A direction that the person cited appear at a time and place specified. 1708. The citation may be issued by the Clerk upon the application of any party, without an order of the Judge, except in cases in which such order is by the provisions of this Title expressly required. 1709. The citation must be served in the same manner as a summons in a civil action. NOTE. The provisions of the three preceding sections are made to conform to the practice of securing jurisdiction of the person by the issuing and service of summons. See "Issuing summons," Sec. 407, ante, and note; "Service," Secs. 410 and 411, ante, and notes; "By publication," see Secs. 412 and 413, ante, and notes. 1710. When personal notice is required, and no mode of giving it is prescribed in this Title, it must be given by citation. 1711. (§ 290.) When no other time is specially prescribed in this Title, citations must be served at least five days before the return day thereof. NOTE.-Stats. 1861, p. 653, Sec. 107. 1712. When a complete description of the real property of an estate sought to be sold has been given and published in a newspaper, as required in the order published, to show cause why the sale should not be made, such sought to be sold, being is sufficient for all purposes. description need not be published in any subsequent notice of sale, or notice of a petition for the confirmation thereof. It is sufficient to refer to the description contained in the publication of the first notice, as being proved and on file in the Court. NOTE. The amendments to this section are intended to produce a more economical administration, in reducing the length of administrators' publication of notices. practice 1713. (§ 293.) Except as otherwise provided in Rules of this Title, the provisions of Part II of this Code are generally. applicable to and constitute the rules of practice in the proceedings mentioned in this Title. and appeals 1714. The provisions of Part II of this Code, rela- New trials tive to new trials and appeals-except in so far as they are inconsistent with the provisions of this Titleapply to the proceedings mentioned in this Title. NOTE.-See Secs. 969-971, ante, and notes. In the matter of the Will of Bowen, 34 Cal., p. 685, it was held that by Sec. 295 no notice of appeal was required. This section is now omitted, and the general practice 1715. The appeal must be taken within sixty days Within after the order, decree, or judgment is entered. NOTE.-See Sec. 939, ante; also, Secs. 969-971, ante. 1716. (§ 294.) All issues of fact joined in the Probate Court must be tried in conformity with the requirements of Article II, Chapter II, of this Title, and in all such proceedings the party affirming is plaintiff, and the one denying or avoiding is defendant. Judgments therein on the issues joined, as well as for costs, may be entered and enforced by execution or otherwise, by the Probate Court, as in civil actions. NOTE.-Stats. 1861, p. 653, Sec. 110; 1867-8, p. 629, 1717. (§ 294.) If no jury is demanded, the Court must try the issues joined. If, on written demand, a jury is called by either party, and the issues are not sufficiently made up by the written pleadings on file, the Court, on due notice to the opposite party, must settle and frame the issues to be tried, and submit the same, together with the evidence of each party, to the jury, on which they must render a verdict. Either what time appeals must be taken. Issues Probate joined in Court, how tried and disposed of. Court to try no jury is low and case when demanded. what issues to be tried. may move for a new trial upon the same grounds and errors, and in like manner, as provided in this Code for civil actions. NOTE.-Stats. 1861, p. 654, Sec. 110; 1867-8, p. 629, Sec. 2. This provides the necessary machinery for trials in the Probate Court; formerly it had none such, and cases were transmitted to the District Court for trials. Jurisdiction to try.-Keller vs. Franklin, 5 Cal., p. 434. When issue joined, where triable—either in District or the Probate Court.-Beckett vs. Selover, 7 Cal., p. 228. Pond vs. Pond, 10 Cal., p. 499, presents a case where the issues were certified to the District Court for trial under the former statute. See, also, The Will of Bowen, 36 Cal., p. 678, et seq., and Estate of Tomlinson, 35 Cal., p. 510, holding that under the constitutional amendments the District Courts have no jurisdiction to try these issues. 1718. (§ 295.) At or before the hearing of petitions and contests for the probate of wills; for letters testamentary or of administration; for sales of real estate and confirmations thereof; settlements, partitions, and distributions of estates; setting apart homesteads; and all other proceedings where all the parties interested in the estate are required to be notified thereof, the Court must appoint some competent attorney at law to represent, in all such proceedings, the devisees, legatees, heirs, or creditors of the decedent, who are minors and have no general guardian in the county, or who are non-residents of the State; and may, if he deem it necessary, appoint an attorney to represent those interested who, though they are neither such minors or non-residents, are unrepresented. The order must specify the names of the parties for whom the attorney is appointed, who is thereby authorized to represent such parties in all such proceedings had subsequent to his appointment. The appearance of the attorney is sufficient proof of the service of the notice on the parties he is appointed to represent. The attorney may receive from the distributive shares. of the estate set apart for the parties whom he repre sents, a fee not exceeding fifty dollars for his entire Same. services; if there is no distribution of the estate, this fee must be paid out of the funds of the estate as necessary expenses of administration. If, for any cause, it becomes necessary, the Probate Court may substitute another attorney for the one first appointed, in which case the fee must be proportionately divided. NOTE.-Stats. 1851, p. 450, Secs. 18, 32, 159, 235, 295; 1861, p. 630, Sec. 8; 1861, p. 441, Sec. 56; 1861, p. 446, Sec. 80; 1861, p. 654, Sec. 111; 1870, p. 794, Sec. 2; see note to the preceding section; Townsend vs. Tallant, 33 Cal., p. 54; Estate of Garraud, 36 Cal., p. 280. Right of appeal in the heirs and devisees.-Bates vs. Ryberg, 40 Cal., p. 463. 1719. (§ 296.) When a judgment or decree is made, setting apart a homestead, confirming a sale, making distribution of real estate, or determining any other matter affecting the title to real estate, a certified copy of the same must be recorded in the office of the Recorder of the county in which the land is situated. If the person entitled to the homestead or distribution is also executor or administrator, the recorded order of the Probate Court vests title thereto in such person, without a deed from the executor or administrator. NOTE.-Stats. 1861, p. 654, Sec. 112. See Beckett vs. Selover, 7 Cal., p. 228. Practice Act applicable.Abila vs. Padilla, 19 Cal., p. 388. Presumptions of jurisdiction.-Irwin vs. Scriber et ux., 18 Cal., p. 499; Spriggs' Estate, 20 Cal., p. 124; Estate of Warfield, 22 Cal., p. 51; Estate of Lucas Todd, 28 Cal., p. 186; Carpentier vs. Small, 35 Cal., p. 361; Beans Vs. Emanuelli, 36 Cal., p. 117; Estate of Garraud, id., p. 280. 1720. (§ 302.) When it is not otherwise prescribed in this Title, the Probate Court, or the Supreme Court on appeal, may, in its discretion, order costs to be paid by any party to the proceedings, or out of the assets of the estate, as justice may require. 41-VOL. II. Decree homestead, relative to and effect thereof. Costs, by whom paid in certain cases. Executor, administrator, or guardian to be removed when com mitted for contempt, and another appointed. Execution for the costs may issue out of the Probate NOTE.-Stats. 1855, p. 302, See. 13. 1721. Whenever an executor, administrator, or guardian is committed for contempt, in disobeying any lawful order of the Probate Court or the Judge thereof, and has remained in custody for thirty days without obeying such order or purging himself otherwise of the contempt, the Probate Court may, by order reciting the facts, and without further showing or notice, revoke his letters and appoint some other person, entitled thereto, executor, administrator, or guardian in his stead. NOTE.-The sections marked thus: (? 135), (2 87), and so on, refer to the sections of the Act of 1851, and are retained for convenience. CHAPTER XIII. OF PUBLIC ADMINISTRATOR. SECTION 1726. What estates to be administered by Public Adminis trator. 1727. Public Administrator to obtain letters, when and how. His bond and oath. 1728. Duty of persons in whose house any stranger dies. 1729. Must return inventory and administer estates according to this Title. 1730. When another person is appointed administrator or executor, Public Administrator to deliver up the estate. 1731. Civil officers to give notice of waste to Public Administrator. 1732. Suits for property of decedents. 1733. Order to examine party charged with embezzling estate. 1734. Punishment for refusing to attend. 1735. Order on Public Administrator to account. 1736. Every six months to make and publish return of con dition of estate. 1737. When there are no heirs or claimants, moneys and effects paid to County Treasurer, etc. |