Comerford

Action to vacate and annul an order of the superior court setting apart a homestead to the use of the defendants out of the estate of Richard Comerford, deceased. The facts alleged in the complaint are set forth in the. report of the case when here upon a former appeal. (Wickersham v. Comerford, 96 Cal. 433 .) After the cause had been remanded to the superior court the defendants answered the complaint, and upon the trial of the issues the court rendered its decision and judgment against the plaintiff, from which, and also from an order denying a new trial, he has appealed. The court finds that the allegations in the petition of Mrs. Comerford for the homestead were not fraudulent, and that the court was not induced to make the order by reason of any false or fraudulent representations therein contained, or by any concealment of facts from it by her or by any one on her behalf. This finding is challenged by the appellant as not supported by the evidence, but we are of the opinion that the evidence before the court justifies the finding.

It was necessary for the plaintiff to establish by clear and indubitable proof, to the satisfaction of the superior court, that the order setting…