In re Estate of Twombley

The appeal is from an order refusing to revoke the probate of the last will of deceased and the grant of letters testamentary thereon, made upon demurrer sustained to the petition.

The order admitting the will to probate was made and entered by the then probate court of Alameda county, on the fifth day of May, 1879. The petition for revocation was filed August 26, 1896—more than seventeen years thereafter. The sole ground urged for a reversal is that it appears from the averments of the petition that the probate court never acquired jurisdiction to admit said will to probate. This proposition is founded upon the fact, alleged in the petition, that no copy of the notice of the time appointed for the probate of the will was served, as *351 required hy the statute, either hy mail, or personally, upon petitioner and the other heirs of the testatrix resident within the state; and that there is no proof on file, or order of the court showing such service. And it is argued that by reason of this fact the order admitting the will to probate was and is void.

It is to be observed that every presumption, not upset by the record itself, is to be indulged in support of the regularity and…