91-7-11 - Testimony of absent witness.
§ 91-7-11. Testimony of absent witness.
When any will shall be exhibited for probate and any witness who attested the will shall reside out of the state or be not found, either of the following methods may be used to prove the execution of the will, to wit:
(a) A commission may issue to take his or her deposition, as in other cases of nonresident witnesses, to which the will shall be attached. Before such original will shall be sent abroad for proof, the clerk shall make and certify to a true copy thereof and file the copy in his office, and such certified true copy shall have the same legal force and effect of the original will and may be substituted for the original will should the original will be lost. Provided, however, where there is no contest, the affidavit of such nonresident subscribing witness may be made before any officer competent to administer oaths in the state where such nonresident witness may be found.
(b) Or, in lieu of sending the original will abroad for such proof, the clerk may have made a photostatic copy of said original will and certify to same as being a photostatic copy of said original will and send said certified photostatic copy of said original will abroad, instead of the original will; and in which case, the clerk shall file the original will in his office.
Sources: Codes, Hutchinson's 1848, ch. 49, art. 1 (28); 1857, ch. 60, art. 44; 1871, § 1100; 1880, § 1972; 1892, § 1819; 1906, § 1994; Hemingway's 1917, § 1659; 1930, § 1604; 1942, § 500; Laws, 1954, ch. 215; Laws, 1966, ch. 322, § 1, eff from and after passage (approved May 20, 1966).