In re Estate of Cobb
Before: Wallace
Synopsis
Pbobate oe Will.—The Prohate Court cannot hear the petition for the probate of a will without proof of service of notice upon the heirs, as required by the Code of Civil Procedure.
Objections to Pbobate of a Will.—If an instrument is offered for probate as a will, which is testamentary in its character, questions concerning the construction to be placed upon it cannot be raised for the purpose of preventing it from being admitted to probate. Such questions cannot be considered until after it is probated.
By the Court, Wallace, C. J.: 1. The Court proceeded to hear the petition for the probate of the will, without proof of service of notice upon the heirs of the testatrix, in accordance with the requirements of section 1306 of the Code of Civil Procedure—several of the heirs not appearing to the proceeding. This was error.
2. The instrument offered being evidently of a testamentary character, upon application to admit it to probate, the inquiry is only as to the mental condition of the testatrix; whether she was acting under duress, menace, fraud, or undue influence; whether the will was duly executed, and the like. The other questions attempted to be raised by the objections filed in the case concern the construction to be placed upon the will, and cannot be considered until it shall have been admitted to probate.
Order reversed and cause remanded for further proceedings. Remittitur forthwith.
Mr. Justice Crockett did not express an opinion.
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