Appeal from a judgment of the Superior Court of Santa Barbara County, and from an order refusing a new trial.

The action was for partition of the rancho Los Cruces, brought by the executors and trustees of William W. Hollister, deceased, who deraigned title to an undivided interest through Miguel Cordero, the original Mexican grantee of said rancho. The complaint alleged that George W. Corliss, deceased, owned one ninth of said rancho, which had been conveyed to him after marriage by one of the heirs of Miguel Cordero; that said George W. Corliss and Lucretia Corliss, his wife, were both killed at said rancho in January, 1864, and that Lucretia A. Corliss survived her husband, and inherited one half of the said interest as community property. Plaintiffs deraigned title to the interest of said Lucretia Corliss through the only heir at law of Lucretia Corliss. The defendant Ella A. Corliss French deraigned title to the whole of said ninth interest of George W. Corliss, deceased, through conveyance from his sole heir at law. The court found in favor of the claim of Ella A. Corliss French, and the appeal is by the plaintiffs from that part of the interlocutory decree which awarded to her an undivided ninth interest in said rancho, and from the order refusing a new trial in relation thereto. The statement on motion for new trial showed that the court struck out so much of the evidence of Miguel Burke as stated his opinion or conclusion from the facts which he observed and testified to concerning the appearance of the dead bodies when he arrived at the house of the Corliss family after the murder was discovered; that the man had been killed while he was sitting, and that the woman had been killed out of doors and dragged in. Also so much of the evidence of Thomas S. Martin as stated his conclusion that the woman had run around a rock in the creek, about a hundred yards .from the .house on the road to the sheep-camp, because there was a small track around the rock that looked like a woman’s track, and blood upon the rock, where she had run around it; and the marks showed that something had been dragged over this rock to the house. The verdict of the coroner’s jury, which was offered in evidence and excluded, found that Mrs. Corliss was murdered outside of the house and dragged within before the house was set on fire. The further facts are stated in the opinion of the court.