In Re Chadbourne

The appeal is from an order and judgment removing F. A. Chadbourne, a brother of the testator, from the office of executor for failing to publish notice to creditors within the statutory period of two months. The proceeding was based upon section 1511 of the Code of Civil Procedure, and was instituted by Dennie May Chadbourne, the widow of deceased, and a coexecutor with appellant.

Appellant obtained an order for publication of the notice on the day he was appointed executor, and on the same day he went with his attorney to the office of the latter and the attorney’s stenographer was instructed to have the notice to creditors published in the “Solano County Courier,” the paper selected by said F. A. Chadbourne. Both appellant and his attorney believed that the notice had been published, but some four weeks after the said order was made, for additional assurance, said attorney sent his stenographer to the office of the county clerk to see if the affidavit of publication of notice to creditors was on file, and she reported that it was, mistaking for the one in question the “affidavit of publication of time set for proving the will.” Not until the petition of respondent was filed…