
    Catherine Baugarth v. Albert Miller et al.
    “Where no person residing in the county in which application is made to admit to probate a lost, spoliated or destroyed will, is interested in resisting the probate of such will, under section 48 of the act of May 3, 1852, relating to wills (S. & 0.1615), notice of the day set for hearing the proof, must be given by publication, in the manner and for the time-required in the section cited.
    Motion for leave to file a petition in error to reverse the judgment of the District Court of Hamilton county.
    The original proceeding was an application by the plaintiff in error to the Probate Court of Hamilton county, to-admit to probate the will of Charles Miller, late of that county, deceased, which the applicant claimed was lost, spoliated, or destroyed subsequent to the testator’s death.
    It appears from the entry of the Probate Court, finding and establishing the contents of the will, and admitting the same to probate, that there was no person residing in the county, interested in resisting its probate; and the transcript of the proceedings in that court does not show that any notice was given by the applicant of the day set for hearing the proof to any person, except written notice to the administrator, who was not interested in the estate as heir or otherwise than as such administrator.
    On a petition in error by the heirs at law of the decedent against the applicant and the administrator, the Court of Common Pleas affirmed the proceedings of the Probate Court, which judgment of affirmance was afterward reversed by the District Court.
    
      
      Forrest, Cramer $ Mayer, and W. M. Ampt, for the motion.
    
      Butterworth § Vogeler, and J. J. Grlidden, contra. ■
   By the Court.

We sée no error in the judgment of the District Court.

Section 48 of the act of May 3,1852, relating to wills (S. & C. 1615), provides that “ In all cases where application shall be hereafter made to the Probate Court, to admit to probate a will' duly executed, .... and which has been lost, spoliated, or destroyed, .... it shall be .the duty of the party seeking to prove the same to give written notice to all persons whose interest it may be to •resist the probate, and who reside in the county where the testator resided at the time of his death, or to their agent or attorney, five days before the day on which such proof -is to be made, or to give notice, by publication in a newspaper printed in the county, thirty days before the day set for the hearing of such proof.”

Whatsoever may have been the reasons that induced the ■general assembly to apply a different mode of proceeding in applications to admit lost, spoliated, or destroyed wills to probate, from that applied to wills actually produced in court and verbal wills, it is quite clear that, under section 48, it would be error in the Probate Court, upon application, to find and establish the contents of a spoliated will, -or admit the same to probate, until notice, in one or the other of the modes required, of the day set for hearing the -proof has been given; and we are of opinion that the section, reasonably construed, requires that where there is no •person residing in the county in which the application is ■made, who is interested in resisting the probate of the will, to whom written notice of the day set for hearing the proof can be given, notice must be given by publication.

Motion overruled.  