This is an application for a writ of mandate to compel the superior court of Napa county to make a decree showing that due notice to creditors has been given in the above estate.

The order for the publication of the notice was made June 11, 1894, and directed its publication once a week for four weeks. The paper in which it was to be published was not designated.

The publication was made as directed in the Napa Daily Journal, the first publication being on July 12, 1894.

*667 The value of the estate was less than ten thousand dollars, and, accordingly, creditors were required in the notice to present their claims within four months after the first publication.

December 3, 1894, due proof of publication was filed in the probate court of Napa county and presented to the court, which was asked to decree that due publication of the notice to creditors had been made.

The court refused to make the order, not, however, objecting that the proof was insufficient, but because the judge thought the publication in the newspaper selected did not give sufficient notice.

In his answer to the petition herein the respondent makes the following statement as to his action in the matter:

A demurrer was interposed to the petition, but we understand that it is not insisted upon or is submitted to be decided after a consideration of the whole case. The petitioner, on the other hand, does not desire to introduce any evidence, but the case is submitted on the facts stated in the answer.

Section 1490 of the Code of Civil Procedure requires the notice to be published in “ some newspaper of the county, .... as often as the judge or court shall direct, but not less than once a week for four weeks”; and provides that “the court or judge may also direct additional notice by publication or posting.”

The notice must require all persons having claims against the estate to present them to the executor or administrator.

Section 149.1 provides that the time expressed in the notice for the presentation of claims must be ten months after its first publication when the estate exceeds in value ten thousand dollars, and four months when it does not.

Under these provisions we think the judge, when he made the order for the publication of notice, might *669 have also directed additional notice, and that he could have done so afterwards within the period allowed for the presentation of claims.

So, too, when proof was made, the judge could have determined that the publication did not give notice to the creditors. Had he so determined, his action could not have been reviewed in a proceeding of this character. Upon so determining it would have been his duty to direct notice to be given as though there had been no previous attempt to do so, and the time for the presentation of claims would begin to run only from the giving of the new notice.

But recognizing the publication already made as notice, though, in the opinion of the judge, not the best notice, he could not extend the time for the presentation of claims by then ordering additional notice.

This is precisely what the respondent attempted to do. For he says that at the expiration of the four weeks he would have signed the order, and that when he refused to sign the order presented to him he so informed the petitioner.

The demurrer is overruled, and it is ordered that a peremptory writ issue as prayed for.

McFabland, J., Garoutte, J., Van Fleet, J., Habbison, J., Beatty, C. J., and Henshaw, J., concurred.