Leach

I concur in the judgment. In my opinion, the petitioner was entitled to a settlement of her bill of exceptions without respect to her right to move for a new trial in the matter of the decree for a family allowance. As the question is immaterial to the determination of this proceeding, I do not desire to express any opinion as to the right to move for a new trial in such cases.

This is an application for a writ of mandate to compel respondent to consider petitioner’s proposed bill of exceptions, and the proposed amendments thereto attached, and to settle the same. An alternative writ was issued, and the respondent has appeared and objected to the sufficiency of the petition,— has orally demurred to it, on the ground that it does not state facts sufficient to entitle petitioner to the relief sought by her.

The facts alleged, and upon which the petitioner claims the right to have a bill of exceptions settled, are as follows: In November, 1886, Maria A. Burton, widow of H. S. Burton, deceased, filed a petition asking for an allowance of $250 a month out of the funds of the estate. The petitioner, who is interested in the estate of Burton, filed written objections to the granting of said petition. The issues were tried by Judge Aitken,who at that time was presiding judge of the superior court in which the matter of said estate was pending, and on January 3, 1891, he made and filed findings of fact and conclusions of law in favor of Mrs. Burton; but it is alleged that the order granting family allowance was not entered until some time after January 5, and…