Estate of Christensen

McFARLAND, J.

The above plaintiffs, having instituted proceedings under section 1664 of the Code of Civil Procedure to have the rights of all claimants to the estate of Peter Christensen, deceased, adjudicated, and all preliminary steps having been properly taken, on June 3,1899, filed their complaint,

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in which they averred that said decedent died intestate, and that they (setting up the facts constituting their claims) were entitled, as heirs, to all his estate. A number of persons were brought in and made defendants, as claiming some interest in the estate. The defendant Norton was administrator, and filed an answer, in which he claimed no interest in the estate, but merely prayed that the court determine to whom distribution thereof should be made, and for his costs, etc. Other defendants, who may be designated as Anderson, Christensen et ah, filed answers, in which they also claim to be the heirs of the decedent, and entitled as such to his estate, setting up the facts constituting their respective claims. The contest between these defendants, and between them and plaintiffs, were fully heard and determined, and the court found that the plaintiffs were the true heirs, and that neither of said defendants had any ownership or interest in the estate, and rendered judgment for plaintiffs. Said defendants have not appealed.

The appellants Plotz, Doan, and Jessen, who were also defendants, and have appealed from the judgment and from an order denying their motion for a new trial, filed an answer in which they denied the intestacy of the decedent, and alleged that, on February 5, 1898, he made an olographic will, which they set out in the answer, under which they claim part of the estate as devisees under said will. There is no averment in the answer that the alleged will had been admitted to probate, or that any steps had been taken to have it probated. In the prayer they ask “the judgment of this court that said will be declared to be the last will and testament of Peter Christensen, deceased; that it be admitted to probate; that letters of administration with said will annexed issue to the one entitled thereto,” etc. It appears in the statement on motion for a new trial that “it was announced, on behalf of John Plotz, D. M. Doan, and Louis Jessen, that they do not desire to participate in the trial of the question as to who were the heirs of Peter Christensen; and they did not participate in the trial of such question’ ’; and ‘ ‘that said findings as to the matter of heirship are and were abundantly sustained by the evidence, and the defendants Plotz, Doan, and Jessen do not attack such findings as to the matter of heirship on this motion or otherwise.” After the evidence as to the issues between all the other parties had been closed, counsel for the appellants addressed the court,