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

Matthew Delaney died at San Francisco on the 19th day of December, 1865, leaving him surviving his wife, Mary Delaney, and three children, Edward J. Delaney, Cecilia M. Delaney, now Cecilia M. Wynants, and the appellant, Mary A. Delaney, now Mary A. McCurrie, wife of J. P. McCurrie, who are the only heirs of the deceased.

On the 30th of May, 1865, said Matthew Delaney made his will, in which, after making several specific devises, he gave and devised to his executors the residue of his estate in trust, with directions to sell certain real estate therein described, and to pay out of the proceeds of such sale—

1st. All his lawful debts.

2d. To his daughter, Mary A. Delaney, and others, bequests to the amount of four hundred and twenty dollars.

3d. That his executors should invest the balance of such proceeds of sale, with all moneys that should come into their hands, and keep the same invested in some safe manner, upon interest, and to pay out of such investment to his wife, Mary Delany, thirty dollars a month for the first twelve months next succeeding his death, and after the said period of twelve months, fifty dollars a month during her natural life. That after paying the monthly instalments to his wife, the surplus of interest should be divided every three months, giving to his wife one quarter of such interest, and the other three quarters to be equally divided among his surviving children; on the death of his wife the balance of any money or real estate remaining to be equally divided among his surviving children. Edward J. Delaney and George Kavanagh were nominated executors in the

will, and in the absence or inability of said George Kavanagh to act as executor, Edward J. Delaney was appointed sole executor, with full power to act in every respect. The will made no mention of waiving orders of the Probate Court directing sales, or confirming sales when made; nor did it speak of probate proceedings.

On January 11th, 1866, the said will was duly probated at San Francisco, and on the 22d of that month, letters testamentary were issued by the Probate Court to Edward J. Delaney as sole executor, Kavanagh declining to act.

On July 16th, 1866, Mary Delaney, the widow, filed her renunciation in writing in the Probate Court, reciting that all the property of the testator was common property, and that she desired to assert her rights of common property, and that she renounced any and all right, title, or interest she might have to said estate, and released said estate from any claim she might have under said will.

On August 16, 1869, a decree was made by the Probate Court, on the petition of the widow, distributing to her one undivided half part of the real estate of which the testator died seized, except the homestead, which had been previously set off to her.

On May 18, 1871, the estate being in condition to be closed, Mary A. McCurrie, the appellant, filed her petition for distribution of the estate, claiming that by the renunciation of the widow and her election to take one half of the common property, that portion of the estate devised to the executors in trust became subject to distribution among the heirs at law in the same manner as if the said Matthew Delaney had died intestate, and praying among other things that one sixth of all the property held in common by said widow, the petitioner and the other heirs, and which property is described in. the petition, might be set apart and distributed to her.

On the hearing of the petition the counsel for the executor offered in evidence five deeds, dated respectively April 3d, Í867; July 28, 1869; December 18, 1869; March 16, 1870; September 15,1870, from Edward J. Delaney as executor, and Mary Delaney the widow of deceased, to differ-

ent parties, purporting to convey a large part of the lands described in the petition for distribution, which lands are a portion of the residue of the estate devised by deceased to his executors in trust; one sixth part of which are claimed by appellant as heir at law of deceased.

No application had been made to the Probate Court for the sale of this property; no order of sale had been made therefor; no return of sales had been made; nor had there been any confirmation of any of the sales, or application therefor.

The portions of the will most material to the questions here involved are as follows, viz:

“Fifth. I give, devise and bequeath to my executors hereinafter named, all and singular, my property, real and personal, wherever situated, which remains after satisfying the foregoing provisions, in trust nevertheless, and to and for the following uses and purposes, viz: I direct my executors to sell all and singular the following described property belonging to me” [here follows a description of it,] “and convert the same into cash; and I direct my executors to pay out of such proceeds of sale all my lawful debts, whether to government or individuals. I direct my executors to pay out of such proceeds of sale the following” [here designating the sums and persons.] “I further direct my executors to invest the balance of such proceeds of sale after paying the foregoing bequests, with all moneys that may come into their hands, and keep the same invested in some safe manner upon interest, as in their judgment may seem best; and I direct my executors to pay out of such investment to my wife, Mary A. Delaney, the sum of thirty dollars, for each and every month during the period of twelve months next succeeding my death, and after the said period of twelve months, I direct my executors to pay to my wife, Mary Delaney, the sum of fifty dollars, foiAeaeh and every month during her natural life. * * * *

“And I further direct my executors that after paying the monthly instalments to my wife, I desire that any surplus of interest should be divided every three months, giving to my wife, Mary Delaney, one quarter of such interest, and the other three quarters to be equally divided among my surviving children.

“I desire and direct my executors that, upon the death of my wife, Mary Delány, the balance of any money or real estate remaining in their hands shall be divided equally among my surviving children."

The introduction of the several deeds in evidence was objected to on behalf of Mary A. McCurrie, on the grounds ■ of irrelevancy, incompetency and inadmissibility; that the sales had not, nor had any of them been confirmed; that the sales and each of them, were without notice or authority from the Court; and that no report for confirmation of them, or either of them, was ever made to the Court, nor had any confirmation thereof been applied for, and that said deeds, and each of them, were ineffectual to convey any title.

The Court overruled each of the objections and admitted the deeds severally in evidence, and the appellant duly excepted.

On April 8, 1872, the Court made an order refusing to distribute said estate in accordance with th¿ prayer of the petition of Mary A. McCurrie; and on May 31, 1872, made a decree of distribution, distributing to the grantees named in said deeds of Edward J. Delaney, executor, and Mary Delaney, the property described in said deeds; and finding that said executor during the administration of said estate, under and by virtue of the authority conferred upon him by said will, sold the said lands described in said deeds for a good and adequate consideration. The petitioner appealed.