Keller

Murray, C. J., and Bryan, J., concurred.

The appellant and respondent both applied to the Probate Court for letters of administration on the estate of Franklin,—the former as Public Administrator, the latter claiming to be the wife of the decedent. The appellant denied that respondent was the wife of Franklin. A hearing was had upon that question before the Probate Judge, who decided in her favor, and granted her the administration.

The appellant assigns for error, that the Probate Court has no jurisdiction to try and determine questions of fact, and cites and relies upon the case of Reed's Heirs v. McCormick, 4 Cal., 342 .

The construction contended for would have the effect of destroying the usefulness of the Probate Court. There is scarcely a step to be taken in that Court which does not involve the decision of some question of fact, and whether an issue be taken or not, the Court has alike to determine the fact upon proofs.

There is then no greater reason for denying the Probate Judge the trial of an issue of fact than to deny him the determination of any fact which has to be proved, although not contested.

The issues of fact joined in the Probate Court, and which are to…