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Estate of Rice

1 Myrick 183 Court S.F. Prob. Ct. Decision date 1878-08-12 Docket No. 2596 English

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p. 183
ESTATE OF JOHN D. RICE.
No. 2596
Aug. 12, 1878.

Headnote

Jubisdiction. — Decree,.beoitals in, to show that jubisdictional notice has BEEN GIVEN.
In order to nullify the effect of recitals in a decree admitting a will to probate showing that notice has been given, where the formal affidavits in that behalf on file are defective, but not antagonistic to the recitals of the decree, it must be shown, not only, that the recitals in question are untrue in fact, but also, that the Court was imposed upon in the evidence heard.
Construing sections, C. C. P., 2010-11.
Jas. G. Carson and J. M. Poston, for petitioner.
Tobin & Tobin, contra.

This is an application to set aside the order heretofore made setting apart a homestead, on the ground that the Court had no jurisdiction of the proceedings, by reason of defective notice of the probate of the will of testator.

The order admitting the will to probate recites that service of the notice of the application for probate, was duly made upon all parties interested in the estate. The affidavits of service on file are defective as to the service; but they do not show that the recital in the order was untrue.

It was necessary for the petitioners to have shown, not only that the recital in the order was untrue, but that the Court was imposed upon in hearing the evidence upon which the law presumes that the recital was based.

The motion is denied.