Murray

This is an application for a writ of mandamus to compel the respondent court to proceed with the trial of a contest, before probate, of the will of Robert P. Rathbun, deceased. The will, together with a petition for the probate thereof in the county of Marin, was filed on April 24, 1928. All of the estate of the testator was left to his mother, Emelie Chapman Ashe, with the exception of that portion bequeathed to specifically named legatees, and those coming within the class mentioned in the following provision of the will: “My personal property is to be divided share and share alike among the children of my mothers sisters and brothers . . . This upon my mothers death.”

The petition for the probate of the will set forth the names and addresses of the heirs and legatees of the decedent and stated that the individuals therein named were of lawful age, all in compliance with the requirements of section 1300 of the Code of Civil Procedure, which provides that the petition for the probate of the will must, among other things, show: “3. The names, ages, and residences of the heirs, legatees, and devisees of the decedent, so far as known to the petitioner.” Notice of the time set for…