In re the Estate of Joseph

Deceased died testate. A document purporting to be his last will was admitted to probate February 17, 1888, and the executors named therein were duly appointed. It does not appear whether or not the estate has been distributed. On December 13, 1894, appellant, one Wesley J. Lovett, filed his petition to revoke the probate of said will and contesting the same. Issues upon the merits were framed and were in condition to be tried, whereupon the executors, by their attorneys, served notice upon appellant that they would move the dismissal of appellant’s said petition, on the ground that “due and legal notice was served on said attorneys of said Lovett, on the fifteenth day of June, 1895, to file with the clerk of the above-named court an undertaking, as is provided for in section 1036 of the Code of Civil Procedure; that more than thirty days have elapsed since the service of said notice, and the said undertaking has not been filed.” At the hearing of the motion it was admitted by appellant that he had not filed the undertaking referred to. It rvas also admitted that appellant is a citizen of the state of Ohio. The court granted the motion, and entered an order dismissing the petition…