
    [No. 14931.
    In Bank.
    March 12, 1892.]
    MAGGIE LEACH, Petitioner, v. W. L. PIERCE, Superior Judge, Respondent.
    Estates of Decedents—Pkoceedinss fob Sale of Realty—Issues of Fact — New Tbial. — Issues of fact are expressly authorized by the provisions of the code requiring petitions for the sale and conveyance of real estate of decedents to be in writing, setting forth the facts showing the sale to be necessary, and providing for the hearing and determination of written objections by persons interested in the estate; and a motion for a new trial is proper to review the decision of the court upon such issues.
    
      Id. — Bill of Exceptions —Refusal of Settlement — Previous Refusal of Predecessor in Office — Mandamus. —Where a bill of exceptions on motion for a new trial has been prepared and served in proper time, the superior judge in office cannot properly refuse to settle the bill on the ground that his predecessor in office, who tried the case, had refused to settle it after his term of office had expired, and a mandamus was not allowed to compel such settlement because of such expiration of term, but the judge in office will be compelled by mandamus to settle the bill.
    Mandamus to the judge of the Superior Court of San Diego County to compel the settlement of a bill of exceptions.
    The facts are stated in the opinion of the court.
    
      Wellborn, Parker & Stevens, and Haines & Ward, for Petitioner.
    
      Luce & McDonald, and Works, Gibson & Titus, for Respondent.
   Paterson, J.

This is an application for a writ of mandate to compel the respondent to settle a bill of exceptions.

The petitioner alleges that the administrator of the estate of Henry Burton, deceased, filed a petition in the superior court on September 6, 1889, praying for an order for the sale of a portion of the estate of said decedent; that petitioner in due time filed written objections to the granting of said petition; that the issues were tried without a jury by Judge Aitken, who, on the third day of January, filed findings of fact and conclusions of law, and entered a judgment thereon granting the petition of the administrator; that no notice of the decision or entry of the judgment was ever given to the petitioner, but on March 2, 1891, she appealed from the judgment to the supreme court, and the appeal is still pending; that on January 12,1891, petitioner served upon the administrator a notice of intention in due form to move.for a new trial; that the court granted the petitioner twenty days from January 21st in which to prepare and serve affidavits and a bill of exceptions to be used on the motion for a new trial; that the proposed hill was served on February 10, 1891; that in due time the administrator served a document containing objections and proposed amendments to said proposed hill of exceptions; that the proposed bill and the objections and proposed amendments were given to the clerk on March 14th; that Judge Aitken heard the parties in the matter of the settlement of said bill on April 11th, and refused to settle any bill. The petition then goes on to allege various matters which occurred thereafter, and which are in all respects the same as the facts stated in Leach v. Pierce, ante, p. 614, relating to an application to this court for a writ of mandate, its order thereon, and an application to Judge Pierce for a settlement of the proposed bill, and his action thereon.

The provisions of the code for the sale and conveyance of real estate of decedents require all petitions for orders to be in writing, setting forth the facts showing the -sale to be necessary, and upon the hearing, “ any person interested in the estate may file his written objections, which must be heard and determined.” Issues of fact, therefore, are expresssly authorized by the code, and a motion for a new trial is proper to review the decision of the court. (Estate of Bauquier, 88 Cal. 315; Leach v. Pierce, ante, p. 614.)

The decision of the court was filed on January 3, 1891, and within ten days thereafter notice of intention to move for a new trial was given, and a bill of exceptions was prepared and served within the time allowed by the statute and the order of the court.

The refusal of the respondent to settle the bill because Judge Aitken had refused to settle it is not based upon tenable ground. Upon the facts stated, the petitioner was entitled to a bill of exceptions; but this court could not compel Judge Aitken to settle one because his term of office had expired, and for that reason only the application made by the petitioner for a writ of mandate was denied.

The petitioner is entitled to have a bill of exceptions settled, showing a correct record of the proceedings, if the facts be as stated in her petition. The objections to the petition are therefore overruled. Let the writ be made peremptory.

McFarland, J., Sharpstein, J., Harrison, J., De Haven, J., Garoutte, J., and Beatty, C. J., concurred.  