Appeal from the Probate Court of the City and County of San Francisco.

Herman Schroeder died in January, 1862, leaving real estate situated on Everett street, and Minna street, in San Francisco. The deceased left a will, by which he devised his property to his wife Adeline Schroeder, and appointed her executrix. The will was admitted to probate on the 10th day of February, 1862, but before letters testamentary were issued to the executrix, she intermarried with Carl Jahns, and thereupon, upon the joint petition of said Carl and his wife Adeline, said Carl was appointed administrator with the will annexed, and letters were issued to him on the 25th day of March, 1862, and he remained administrator until the 5th day of February, 1869, when his letters were revoked by the Probate Court, and Jacob Benjamin, the Public Administrator, was appointed in his place, and letters were issued to him on the 21st day of April, 1869. In May, 1862, one Christopher Streitberger loaned to said Carl and Adeline, his wife, twelve hundred dollars, and to secure the same, they executed to him a mortgage on the Minna street property. Streitberger foreclosed this mortgage, and the property was sold, and he obtained a Sheriffs deed on the 28th day of November, 1868, and immediately entered into possession of the property, and was in possession at the time the proceedings in this case were had.

On the 22d day of October, 1863, H. W. Nolting obtained a judgment, in the Fourth District Court, against Carl Jahns, the administrator, for four hundred and sixty-five dollars and sixty-one cents, and ninety-one dollars and twenty-eight cents costs; and on the 30th day of December, 1863, Bernard Sehroeder also obtained a judgment against the said administrator for two thousand six hundred and eighty-three dollars and thirty cents, and one hundred and forty-three dollars and eleven cents, costs of suit. These judgments were entered up as personal judgments, but on the 26th day of April, 1872, were amended by the District Court so as to be made payable out of the assets of the estate, in due course of administration. On the 29th day of October, 1869, Benjamin, the administrator, filed a petition for leave to sell the real estate to pay the judgments and costs, and expenses of administration, and Streitberger and said Adeline opposed the same. Such proceedings were had that the Probate Court, on the 8th day of March, 1871, made an order for the sale, from which order the contestants appealed. The Supreme Court reversed the order, because the petition was defective, and gave the petitioner leave to amend his petition. When the remittitur was filed in the Court below, and in January, 1872, the petition was amended, and Streitberger, on the thirteenth .of February, filed an opposition. Benjamin, the administrator, sued Streitberger in ejectment to recover possession of the Minna street property; and, in his complaint, claimed that Streitberger owed the estate three thousand dollars for four years use and occupation'of said property. On the trial of this case, Streitberger’s attorney offered the papers in said suit in evidence, to show that there was personal property belonging to the estate (the three thousand dollar claim against his client), but at the same time admitted that his client contested the claim. The Court excluded the evidence.

For the purpose of showing the existence of debts which rendered it necessary to sell the real estate, the petitioner offered in evidence the judgments, as amended, in favor of Editing and Bernard Schroeder against the administrator. A certified copy of the judgment of Nolting, as amended, had been filed in the Probate Court, April 29th, 1872; and a certified copy of the judgment of Bernard Schroeder, as amended, had also been filed on the same day. The contestant objected to these judgments being received in evidence, because they were irrelevant, and because the amendments revived outlawed judgments against the estate when they were originally personal judgments. The Court overruled the objections. The Court made an order for a sale of the real estate, and from this order the contestant appealed.

The other facts are stated in the opinion.