Appeal from the Prohate Court, City and County of San Erancisco.

William E. Hamilton died intestate in the City and County of San Erancisco, State of California, on the 14th day of June, 1862, leaving estate therein. On the 2d day of July, 1862, Adolphus Hollub, at that time Public Administrator of the City and County of San Erancisco, filed his petition in the Probate Court of said city and county, setting forth sufficient facts to confer jurisdiction upon the Court, and praying for letters of administration upon said estate; due and legal notice of such application was given by the Clerk of said Court, and on the 21st day of July, 1862, an order was made and entered, appointing the petitioner, Adolphus Hollub, administrator of the estate, upon his talcing the oath prescribed by law. It does not appear from the records of the Probate Court that Hollub ever subscribed • or took the oath required by the statute, or that letters of administration upon the estate were ever issued to him.

On the said 2d day of July, 1862, an order was also made appointing three appraisers to appraise the estate, hut no inventory and appraisement were ever filed by Hollub. On the 23d day of July, 1862, an order was made directing the publication of notice to creditors of said deceased, and such notice was published by Hollub for the time and in the manner prescribed by the order.

The claim of one Patridge was presented to and allowed by Hollub, as administrator of the estate, on the 16th day of May, 1863, which claim was also approved by the Probate Judge, and filed in the Court; but no other acts appear from the records or files of the Court to have been done, or other proceedings taken by him in the matter of the estate.

On the 3d day of April, 1865, a petition for letters of administration upon the estate was filed in said Court by J. W. Brumagim, the then duly elected and qualified Public Administrator of the City and County of San Erancisco, setting forth the death of Hamilton in said city and county, that he left estate therein, that he was unmarried, and that his heirs at law were unknown to the petitioner, and praying for letters of administration upon his estate. On the same day an order was made by the Probate Court, directing the usual and legal notice to be given by the Clerk of the Court of the hearing of said petition, on the 13th day of April, 1865, which notice was duly and regularly given according to law; and on the said thirteenth day of April, upon proof of the facts set forth in the petition, an order was made and entered by the Probate Court, appointing J. W. Brumagim the administrator of the estate upon his taking the oath prescribed by the statutes. Ho person interested in the estate appeared at the hearing of the last mentioned petition tó contest the same. On the 28th day of Hovember, 1866, Brumagim duly qualified as such administrator, and letters of administration on said estate were issued to him on that day. On the 30th day of Hovember, 1865, orders were made and entered by the Probate Court, directing a notice to the creditors of said deceased to be published, and appointing appraisers to appraise the estate of the deceased. Brumagim published the notice to the creditors of deceased for the time and in the manner prescribed by said order, and on the 14th day of January, 1867, filed his inventory and appraisement of the estate. On the 7th day of February, 1867, Brumagim, as administrator of the estate, filed his petition in Court, praying for an order of sale of real estate belonging to the estate, for the purpose of paying the debts outstanding against the deceased, and the charges and expenses of administration upon the estate.

At the hearing of this petition, on the 1st day of May, 1867, objections were made to the granting of said order of sale by one Hugh Hamilton, claiming to be the brother and only heir at law of deceased, on the ground, among others, that Brumagim was not the legally appointed administrator of the estate, and that Hollnb was such administrator.

The Court by its order denied the said petition of Brumagim, and revoked and annulled his said letters of administration, from which order Brumagim appealed to this Court.

The other facts are stated in the opinion of the Court.