Appeal from the Probate Court, County of Santa Clara.

Mary Cobb, on the 16th day of June, 1873, made her will, in which she stated that she was living separate and apart from her husband, Samuel Cobb, and that she had, as her separate property, $3,600. The will then proceeded as follows:

“ I desire and direct that out of my said estate that all of my just debts, including funeral expenses, to be fully paid and discharged.

“From the residue of my estate, after the payment of my debts, I hereby make and direct my executors hereinafter named, to pay the following bequests, viz:

“Five hundred dollars gold coin to the Santa Clara College, in said Santa Clara County, to be used by the President of said College in defraying the expenses of Wm. Henry Cobb, the son of my husband by a former marriage, provided the said Henry is educated at said College. If the said Wm. Henry does not consent, or is hindered from attending said College, then I bequeath the five hundred dollars to the President of said College, to be used by him at his discretion in the cause of education at said College.

£ £ I give and bequeath five hundred dollars to the Pastor of St. Joseph’s Parish (Catholic), to be by him expended in having masses said for the repose of my soul after my death, at the Catholic Church in said Parish.

“I give and bequeath the sum of five hundred dollars to the Catholic Church of St. Joseph’s Parish in San José, California, to be by the Pastor of said Church. expended for the benefit of said Church.

“I give and bequeath one thousand dollars to the St. Mary’s Hospital of San Francisco, Cal., to be used and expended in the interest of said Hospital.

“I give and bequeath five hundred dollars to the Eoman Catholic Orphan Asylum of San Francisco, California.

“I give and bequeath the balance of my estate to St.

Ignatius’ College of San Francisco, to be expended under the direction of the President of said College, in .the cause of education at said College.

“Should there not remain of my estate after my death sufficient to pay the foregoing bequests, then I direct that the said bequests be paid pro rata, excepting the five hundred dollar’s bequest made to St. Joseph’s Church for the repose of my soul, which bequest I direct to be paid in full.

“I hereby nominate and appoint Edward McLaughlin and Charles E. White, the executors of this, my last will and testament, and direct that they may discharge the trust without giving bonds to any court or tribunal for the faithful performance of their duty, and I direct that said executors conjointly, or either of them, acting separately, may fully discharge and perform the execution of this trust, and that for its faithful performance they and each of them shall be held responsible only to the tribunal of their consciences. “MART COBB.

“June I6th, 1873.”

‘‘ The above written instrument was subscribed by the said Mary Cobb, testatrix therein, in our presence, and acknowledged by her to each of us, and she at the same time published and declared the same so subscribed to be her last will and testament; and we, at the testatrix’s request, and in her presence, and in the presence of each other, have signed our names as witnesses hereto.

“Thos. Bodley,

“San Jose. “Chas. F. Wilcox.”

“I desire to cancel, annul and make void that provision of • the foregoing will which provides for the payment to the Santa Clara College of the sum of five hundred dollars for the defraying the expenses of Wm. H. Cobb at said Santa Clara College, and I hereby devise and bequeath the five hundred dollars intended for that purpose, to the Roman Catholic Infant Asylum of San Francisco.

“MART COBB.

“July the-,1873.”

“The above codicil to the foregoing will was subscribed by the said Mary Cobb, testatrix therein, in our presence, and acknowledged by her to each of us; and she at the same time published and declared the same so subscribed to be her last will and testament; and we, at the testatrix’s request, and in her presence, and in the presence of each other, have signed our names as witnesses thereto.

“Michael Madden,

“Mrs. Kate Purged.”

The testator died in August, 1873. The executors petitioned to have the will admitted to probate. The usual order was made for notice to be given of the time and place of hearing. The petition set forth that the deceased had brothers, a sister, and mother living, two of whom resided out of this State. The surviving husband filed objections to probating the ¡will, which were as follows:

“Samuel Cobb, the husband of said deceased, comes now and files these his grounds of objection to the probate of the instrument filed in this Court, and of which probate is asked, as the last will and testament of Mary Cobb, deceased.

“1st. He objects to the probate of said instrument as a will on the ground that said instrument is not a will or testament. That there is no person or corporation named therein as legatees competent to take.

“2d. That no testamentary disposition is therein made of any property or estate, and the same cannot, therefore, be admitted to probate as a will.

“3. The said deceased was not competent to make a will at the time of the alleged execution of said instrument.

“4th. The said Mary Cobb, at the date of the alleged execution, was not of sound and disposing mind.

“5th. Said Mary Cobb, at the time of the execution of said instrument, was acting under duress, menace, and undue influence, and signed the same under such undue influence, duress, and menace.

“Dated October 20, 1873.”

The petitioners demurred to the first and second grounds of objection, and the Probate Court sustained the demurrer. Issues of fact were settled and tried on the other objections, and they were decided in favor of the petitioners. The only proof of service of notice of the time and place of hearing the application for probating the will was the certificate of the Clerk that he had posted notices in three of the most public places in the county of Santa Clara. The Court admitted the will to probate; and, in the order admitting it to probate, recited, “and it appearing to the Court on due proof made that notice of the hearing of said application was duly given according to the statute in such cases made and provided.” Samuel Cobb, the contestant, appealed.