Appeal from the Prohate Court of Contra Costa County.

The petition for the probate of the will of Daniel G-. Bowen, deceased, was filed in the Probate Court of Contra Costa County June 30th,. 1864, by Joseph Bmeric, who was named therein as executor, to admit said will to probate and for letters testamentary to issue to him. Thereafter, and pending said petition, Trinidad Pacheco and others, representing themselves as heirs of said Bowen, deceased, filed in said Court their opposition to the probate of said will as prayed, and, on their motion, certain issues of fact—upon the determination of which the right of said will to probate was dependent—were framed and certified to the District Coui’t of the Fifteenth Judicial District, Contra Costa County, for trial. On the trial of said issues in the District Court with a jury, a special verdict on all of said issues was rendered in favor of the petitioner and against contestants, upon which, as certified to and returned by the District Court to said Probate Court, and without other or further proof, the latter Court, by appropriate order, admitted said will to probate and issued letters testamentary to petitioner as prayed. Said contestants excepted to said order, and procured to be settled by the Probate Court a bill of exceptions, which, in addition to said exception to said order, contained a separate bill of exceptions, duly settled by said District Court, of and concerning certain of the proceedings of the trial of said issues in the last named Court. This appeal was taken by said contestants from said order, and was heard upon the bill of exceptions as settled by the Probate Court. This appeal was taken by filing a notice thereof with the Clerk of the Probate Court within the time prescribed by law, and by giving the requisite undertaking. Before said order appealed from was made by the Probate Court, a motion for new trial of said issues in the District Court had been made by appellants and denied: and from the order denying the same, proceedings had been taken by appellants to perfect an appeal to the Supreme Court. The legal existence of said last named appeal was denied by respondent on the hearing of this appeal, but the truth of the matter is not ascertainable from the transcript on this appeal. In this Court respondents moved to dismiss this appeal for want of service of notice thereof.

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

M. S. Chase, and Thomas A. Brown, for Appellants, argued that the Probate Court had no jurisdiction to admit the alleged will or to issue letters testamentary to respondent, because of the j>endency of an appeal from the order of the District Court denying appellants’ motion for a new trial of the issues tried therein; that said order was appealable; and cited section twenty of the Probate Act. (Keller v. Franklin, 5 Cal. 133.) They further argued that the appeal was properly taken, although not served on respondents; and cited section two hundred and ninety-eight of the Probate Act.