In Re Estate of Bouyssou

HARRISON, P. J.

The appeal herein, as stated in the-notice of appeal, is from the order “vacating and setting aside the order refusing probate of the will of the above-named decedent, and appointing Jean Bouyssou administrator of the estate.” Upon the motion of the respondent the appeal from the order vacating the order refusing probate to the will was heretofore dismissed

(Estate of Bouyssou,

1 Cal. App. 657, [82 Pac. 1066]), leaving for consideration only the appeal from the order vacating the appointment

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of the administrator. The order itself is set forth in the bill of exceptions as follows: “Motion to vacate order refusing probate of will and appointing administrator granted. ’ ’ But the bill of exceptions does not set forth or show any of the proceedings upon which the appointment of the administrator was based, except that it appears therefrom that when the will was filed for probate the appellant filed a petition “for the probate of said will and the issuance to him of letters of administration on the estate with the will annexed”; that a printed copy of a notice fixing a day for the hearing of said petition was received by the respondent through the mail; and that on the day so fixed the will was denied probate and the appellant appointed administrator.

In dismissing the appeal from the other portion of the order we said: “The proceedings for the appointment of an administrator of the estate of a deceased person and for admitting the will to probate are entirely distinct, and are conducted upon different lines of procedure. The appointment of an administrator with the will annexed is to be made in the manner as provided for the granting of letters in cases of intestacy.” That motion having been made upon the ground that the order was not an appealable order, we were not called upon to examine the record for the purpose of determining the propriety or correctness of the action of the superior court in making it. Error is never to be presumed; and upon an appeal from an order or judgment of the superior court every presumption will be indulged in support of such judgment or order. It is always incumbent upon the appellant to show affirmatively that the order or judgment from which he has appealed is erroneous; and in the absence of any showing of error the action of the superior court will be affirmed.