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ESTATE OF CONRAD BARTELS.

 

No. 7836--July 14, 1877.

 

NOTICE ON PROBATE OF WILL.--Not waived by minors by an appearance in Court on the day of hearing. The ten days' notice of hearing

must be given in the manner prescribed by statute, namely, by mailing or by personal delivery to the minors of copies of the notice.

The Court otherwise does not acquire jurisdiction.

 

CONTINUANCE FOR THE PURPOSE OF GIVING SUCH NOTICE CANNOT HELP THE DEFECT. The notice, served or mailed, must be for

the day specified in the published notice. All proceedings should therefore be vacated after the petition and a new order of

publication given, accompanied by proper service of notice upon the minors.

Construing sections, C. C. P., 1303-4-6.

 

J. C. Zabriskie for proponent.

 

This case came on for hearing on application to probate will. Notice of the hearing was published according to law. Deceased left him surviving a wife and six minor children. No notice was served upon the children either by mailing or personally. The children were all present in Court, and it was asked that their personal presence be taken as a waiver of service; it being claimed that the object of the notice was that the children might come, and as they were here, the object was attained.

 

By the COURT: The statute has prescribed but two modes of service upon heirs, viz: by mailing or by delivering personally. Minors can waive nothing, cannot consent, and nothing can be construed against them. They must be served in one of the modes prescribed by the statute; in the absence of proof of such service, the Court has no jurisdiction of them or of the alleged will. Their personal presence in Court would have no other or further effect than a written appearance signed by them.

 

The attorney for the proponent then asked the Court to continue the hearing in order that a copy of the notice might be served on the children.

 

The COURT: That will not aid you. The notice already published is that parties appear to-day. You cannot of course now give these children ten days' notice to appear to-day. The notice must be served on the children at least ten days before the day fixed in the published notice for the hearing. You will have to commence again, starting upon the petition heretofore filed, take a new order fixing a day for hearing, and publish and serve notice of that day so fixed.

 

 

 

Transcribed by Sue Wood.


2007 Sue Wood.




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