McClellan

This action was commenced under the provisions of section 1664 of the Code of Civil Procedure, plaintiffs’ purpose being to have the court ascertain and declare the rights of all persons in and to the estate of one J. D. Byers, deceased, who died testate, and to obtain from the court a judgment that plaintiffs are entitled to have distributed to them all the residue of said estate after the payment of the debts thereof, the expenses of administration and the specific legacies mentioned in the will of the said Byers.

The defendants are nephews and nieces, the next of kin of deceased. They deny testacy and allege that the provisions of said will, under which plaintiffs claim, are illegal and void, and that defendants, as heirs at law and next of kin of deceased, are entitled to distribution.

Deceased died March 23, 1902, at Lassen county, where said estate is situated. J. A. Forkner was duly appointed executor of the will in question. No final account has been filed and no portion of the estate has been distributed. There were several specific bequests to some of the defendants and others which the decree recognizes, and as to which no question arises. The controversy springs from…