Appeal from an order denying a new trial in the Probate Court of the County of Santa Clara. Payne, J.

The material parts of the compromise agreement referred to in the opinion were as follows:

“ This agreement, made and entered into this 8th day of January, A. D. 1876, by and between Catherine Dunne, * ® * party of the first part, A. J. Donnelly and E. T. Donnelly, as the executors of the last will of James Dunne, deceased, parties of the second part, and James F. Dunne, * * ® of the third part, witnesseth: Whereas, a settlement and adjustment of the claims of the party of the first part against the estate of said James Dunne, deceased, has this day been had between the parties thereto; and whereas, the said party of the first part has this day received from the said parties of the second and third parts a certain promissory note and mortgage, bearing even date herewith, for the sum of thirty-five thousand dollars and interest as therein provided, all in United States gold coin, made and executed and delivered by the party of the third part to the party of the first part, in full settlement and payment of her said claim against the said estate. -» x- x Now, therefore, in consideration of the premises, the said party of the first part hereby remises, releases, and forever discharges the said estate of James Dunne, deceased, and the said parties of the second part, as the executors of the will of said James Dunne, deceased, from liabilities and obligations of every kind and nature to her, and from all manner of actions, causes of action, dues, claims, and demands, in law or in equity, which she ever had or now has against said estate or said parties of the second part as said executors, and particularly from all and any claim or right she has or might have, to have any portion of the estate of said James Dunne, deceased, mentioned in his will, declared to be common propertyof said James Dunne, deceased, and herself. Provided, however, that this agreement and release is not to be construed as releasing, and shall not release, her right to have and receive one half of the property of said estate which is mentioned in said will of said James, deceased, as common property (and to which she is entitled as the widow of said James Dunne, deceased), after the payment of debts of said estate and expenses of administration. * * * And it is further agreed by and between the parties of the first and second parts, that the monthly family allowance heretofore and now allowed by the Probate Court of Santa Clara County out of said estate to the party of the first part, for herself and the minor heirs in her care, shall be discontinued after the month of January, A. D. 1876.” The deed also recites a prior mortgage executed to one Touchard by James F. Dunne, which he agrees to discharge. It appeared from the will that the bulk of the testator’s separate property, including the rancho San Felipe, had either been conveyed to James F. Dunne in the life-time of the testator, or was devised to him by the will. The sums of money referred to in the opinion as paid to M. Malarin were paid under the following circumstances: The testator in his life-time leased to his son James F. Dunne and A. J. and E. T. Donnelly (afterwards the executors) the rancho San Felipe (which was afterwards devised to the said James F.) at the same time he assigned to the same parties a lease of adjoining lands made by Malarin to himself; and agreed that whatever sums the assignees might pay to Malarin for rent should be deducted from the said rental of fifteen thousand dollars. The sums paid Malarin and claimed in the account of the executors were for rent, and aggregated five thousand four hundred and eighty-one dollars and eighteen cents. The item of nine hundred and thirty-nine dollars, referred to in the opinion, was paid by the executors to the Bank of San José as interest on an allowed claim of the bank against the testator for an overdraft, the bank claiming interest at one per cent, per month.