Wallace, J.

1. This is an appeal against the order of the District Judge of Madura refusing to grant to the appellant probate of a Will. The testator named two executors of whom the appellant is one. The other, the respondent, applied for probate and the ordinary notice went to the appellant who appeared and challenged the genuineness of the Will. The District Judge found the Will genuine, granted probate to the respondent, but refused it to the appellant, on the ground that by his action in denying the genuineness of the Will he had to all intents and purposes, renounced his position as executor.

2. Now, although prior to the probate proceedings, the appellant had indulged in wild statements that the Will was a forgery, that he was never appointed executor, that the testator had never signed it, that his own attestation which appears on the Will was obtained by fraud, the statement he put into the probate Court when the proceedings came on was of a milder tenor, and it is that statement alone that the probate Court was, in our view, entitled to consider. It is open, for example, to an executor to openly assert outside the Court that he is renouncing his executor-ship, but it