Estate of Parsons

SHAW, J.

The will of Jemima Parsons, deceased, was admitted to probate in the superior court of the city and county of San Francisco, by an order made by the court and signed by the judge thereof. W. E. Cashman was duly appointed executor of the estate and letters testamentary thereon were issued to him on May 12, 1908.

On May 7, 1909, George Ayling, claiming to be the cousin and sole heir of the decedent, filed a contest, or petition to revoke the probate of said will. Thereafter, Cashman, as executor, and another party, as a legatee under the will, moved the court to dismiss Ayling’s petition on the ground that it was filed more than one year after the will was admitted to probate, and that, consequently, under section 1327 of the.Code of Civil Procedure, such petition or proceeding to revoke the probate of the will could not be maintained. The court granted said motion and thereupon made an order dismissing said contest and petition. Ayling afterwards died and M. J. Hynes, having been appointed special administrator of his estate, appeals from said order of dismissal.

The record contains no bill of exceptions showing the evidence taken and considered by the court upon the hearing of ■ the motion. None was prepared or settled. The only question we can consider on this appeal, therefore, is whether or not the record, or what may be treated as the judgment-roll, is sufficient to sustain the order.

(In re Ryer,

110 Cal. 559,

[428]

560, [42 Pac. 1082];

Miller

v.

Lux,

100 Cal. 612, [35 Pac. 645, 639];

Estate of Page,

57 Cal. 240;

Estate of Isaacs,

30 Cal. 111.)

If the contest or petition for revocation filed by Ayling is to be deemed the initiation of the proceeding, the only papers in the transcript which we could consider are Ayling’s petition, the two papers called “motions,” and the order of dismissal. The petition shows that it was filed on May 7, 1909, and the order recites, or finds, that the will was admitted to probate by an order “duly given and made on the 4th day of May, 1908.” Section 1327 of the Code of Civil Procedure limits the time within which such contests after probate or petition for revocation may be commenced to one year after the will has been admitted to probate.