This case was heard by Department Two of this Court, and its opinion filed. March 25th, 1881. A hearing in Bank was subsequently granted. For the reasons given in the opinion of the Department the judgment, and order are affirmed.

The following is the opinion rendered in Department Two:

The will of the deceased was admitted to probate. Within the year the father of the deceased petitioned that the probate of the will be revoked. The issues raised on that petition were tried by the Court, and the prayer of the petition was denied. The petitioner moved for a new trial, which was denied, and this appeal was taken.

1. On the motion for a new trial, points were made as to the mental capacity of the deceased, as to whether the paper was signed by him, or by any other person for him, in his presence and by his direction, as to whether the attesting witnesses signed in his presence and at his request, as to whether he declared the paper to be his will, and as to whether he was free from undue influence. All these matters were before the Court upon conflicting evidence. There was evidence favorable to the validity of the will upon each of these points. Therefore, the 'decision of the Court will not be disturbed.

2. Another point, made by the appellant in this Court,, but *337 not made in the Court below, is, that it does not appear from the record that both the subscribing witnesses were called on the trial of the issues raised on the petition, under § 1315 Code Civ. Proc. The answer is, it does not appear but that the witness not called was out of the county, or was of unsound mind, or was dead. Neither does it appear but that the petitioner waived the calling of the witness. The statement in the transcript that it contains “all the testimony offered” is in harmony with the fact that the Court might have received proof of the death, insanity, or absence of the witness, and with the waiving by the petitioner of the calling of the witness. At the trial, so far as the transcript shows, no point was made in regard to this matter. It is too late to make it here for the first time.

Judgment and order affirmed."

Morrison, C. J., and Sharpstein, J., concurred.