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discussion in the courts as to whether the will of an Indian can be proved and his estate administered in state court of probate, and it was once flatly decided that no such jurisdiction existed. But during the past few years the views of the judicial tribunals have undergone a change. The later and better opinion is that such jurisdiction exists, unless it appears that there is a custom or tribal law of the race of Indians to which the decedent belonged, under which the will may be established and distribution of the estate conducted. In such event the tribal procedure excludes the white man's law.

47. Lost or destroyed wills.

It sometimes happens that a will, known to have been executed, has been lost, or has been destroyed by some evil and designing person. These circumstances, though embarrassing, do not prevent the proof of the will, provided there is at hand the necessary proof of certain facts upon which the jurisdiction of the court is made to depend.

In the first place, it must be shown either that the will was in existence at the time of the testator's death, or was fraudulently destroyed in his lifetime. The reason for this is that a will which cannot be found is presumed to have been revoked by the testator, and such presumption must be overcome by proof that its loss or destruction was not due to any act on his part. This burden may be met, for example, by showing that the testator, upon executing the will, handed it to another person for safe-keeping, and that upon search after decedent's death it could not be found. This leads to the inference either that its existence continued until the testator's death, or that it was destroyed during his lifetime.

In addition to these facts, it must be shown, of course, that the testator was mentally competent and that the formalities of execution were duly observed. This last may present some difficulties under the circumstances, and while the proof may not attain that degree of certainty which a production of the will would render possible, the law will accept the best evidence which can be procured, so long as it tends to establish the fact to be proved.

The next thing to be shown is the fraudulent destruction of the will. What is meant by this is simply that the instrument was destroyed without the testator's knowledge or consent, and contrary to his intentions. It is also a fraudulent destruction if done by the testator himself, as the result of undue influence exercised upon him by some third person to whose interest it was to have the will destroyed.

Finally, the contents of the lost will must be shown "by at least two credible witnesses." This does not mean that the language of the will must be proved verbatim, for this in most cases would be an impossibility. But it is enough that the substance of those provisions which dispose of property is shown. Generally the parties are able to prove a typewritten copy of the will from the files of the draughtsman who prepared it, and it is then but a step further to connect the draft with the will as finally executed. Upon the court's being satisfied with the proof, the instrument is admitted to probate in the same way as in the case of any other will.

48. Temporary administration when probate

delayed. If there is any considerable delay in the probate of a will, owing to a contest, or for any other cause, very great embarrassment is likely to arise. For, until letters have been issued, there is no one having authority to take charge of and collect the assets, or carry out measures for their preservation. Provision is therefore made in such cases for the appointment by the probate court of a temporary administrator, to act in place of the executor until the will is either admitted to probate, or is rejected and letters of permanent adHis powers

ministration granted. The application for such an appointment may be made by anyone interested in the matter, and is usually granted whenever any reasonable cause is shown why the appointment should be made. The court will generally select the executor or one of the executors named in the will as being best qualified to act, although there are cases where, on account of conflicting interests, such a course will not be followed. He must qualify for office by furnishing a bond, depending in amount upon the size of the estate. are quite limited. He may collect and preserve the personal property, and by special permission may reduce it to cash, if the benefit of the estate requires it. He may also be permitted to lease the real property and collect the rents for a limited period. Sometimes he is authorized to make payments. But in general these may be said to be the limits of his power. He is to preserve the estate, not to administer it. The issue of permanent letters to the executor effects his retirement from office without further action by the court.

49. Application for probate; contest, etc.

As a matter of common practice, the application for probate is almost invariably made by the executor named in the will, because it is his duty to establish it and to defend it against all attack. But there are others to whom the privilege is granted, for the testator may have omitted to appoint an executor, or the one named may have died or become mentally incapacitated. Therefore the application may also be made by anyone who is interested, directly or indirectly, in having the will admitted to probate, as a beneficiary under it, a creditor of the estate, or even one who has a claim for expenses of the testator's funeral.

The application should be made by petition in writing and filed in the office of the probate court. When once filed it cannot be withdrawn, nor the proceedings arrested without the consent of all parties interested in it, and of the court. While it is usually necessary to produce the original will before the court, it is not invariably essential; for cases have occurred where the will of a non-resident has already been proved and filed in a foreign court, from whence it is impossible to remove it. In such cases the testimony of the witnesses is taken in writing at the place where the will is, before a local official designated for that purpose by the probate court in which the proceeding is pending, and the testimony thus taken is then used in the same way as though the witnesses were present and testifying in person. If any or all of the subscribing witnesses are

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