Appeal, by George Babcock as executor, and Mary Ann Babcock as devisee, from judgment of the Superior Court of the County of Alameda. Crane and Greene, JJ.

Proceedings for the revocation of the probate of a,will. Cyrus A. Pomeroy, as an heir at law on the twenty-ninth day of September, 1881, filed a petition for the revocation of the probate, on the ground that the paper was not the olographic will of the deceased. Issue having been joined, and after trial the Court below found the following facts:

1. That the document filed in this Court on the twenty-ninth day of June, A. D. 1881, by George Babcock, which document was, on the eleventh day of July, A. D., 1881, admitted to probate as the last will and testament of Augustus C. Rand, deceased,, and letters testamentary issued thereon, was not subscribed by said deceased in the presence of any attesting witnesses, nor did any witness sign his name thereto as a witness, in any manner, or at any time.

2. That said document, so admitted to probate as the last will and testament of Augustus 0. Band, deceased, as aforesaid, is partly in print and partly in the handwriting of said deceased, and said written part is wholly in the handwriting of said deceased, and that said deceased, with his own hand, subscribed his name to said will, and at the end thereof.

3. That said document so admitted to probate, as aforesaid, in this Court,- as the last will and testament of said deceased, was executed on the day it bears date, to wit, on the twentieth day of October, 1877, as his last will and testament, and said instrument was by him declared to be his last will and testament, and the said George Babcock, named as executor, was informed by said deceased where said instrument would be kept and found after the said Band died.

. 4. Said will was found by said George Babcock, after the death of said deceased, in the place indicated, and inclosed in an envelope, on which was indorsed in the handwriting of said deceased, the words: “ The last will and testament of Augustus C: Band.”

5. That said petitioner, Cyrus A. Pomeroy, is the sole surviving child of Harriet Band Pomeroy, deceased, who was a sister of Augustus C. Band, deceased, and who died before the date of the death of said Augustus C. Band, deceased, leaving her surviving the said Cyrus A. Pomeroy; that at the date of filing of said petition by said Cyrus A. Pomeroy he was over the age of twenty-one years.

An order was made revoking the probate.