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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