[5] In the original opinion it was held that the district court should have established the title to the real estate of which R.P. Rasmussen died seized in the intervenor *Page 264 Forrest Kunze, as sole heir of the deceased infants Richard Lee Kunze and Dorothy Ann Kunze, subject to the conceded interest therein of D.W. Bates, as Superintendent of Banking. On the original submission the American and Danish heirs depended their claims of interest in this real estate on a single fact issue; that is, the survival or nonsurvival by one or both of the above-mentioned two infants after the decease of Irene Kunze. Adopting as determinative this issue as made and presented by all parties in the court below, and here, we determined this fact issue and the opinion was an expression of our findings thereon. In their petition for rehearing the American and Danish heirs now take the position that the fact issue they presented was wholly immaterial to the case. They now claim that in view of the construction given Code section 11861 in McAllister v. McAllister, 183 Iowa 245, 167 N.W. 78, and in Re Hulett's Estate,121 Iowa 423, 96 N.W. 952, it is immaterial whether the deceased infants survived their mother and attained independent existence. They now say that whatever the facts may have been as to surviving their mother, the infants did not, as heirs of their mother Irene Kunze, take the property devised to her by the testator Rasmussen, because the infants were not in existence at the time of the subsequent date of the testator's death. That this contention is supported by the cited cases must be conceded. But although petitioners now point to three or four lines of their citation of authorities, wherein are to be found cited the McAllister and Hulett cases, there appeared nowhere any argument upon the point now raised, in petitioners' original briefs and arguments, which were voluminous. We look on the contention now made as not a matter presented on this appeal prior to the petition for rehearing. It is a well-established rule that a new case cannot be made on a petition for rehearing, nor can matters be then insisted upon which were not presented to the court in the original case. Long v. Garey Investment Co., 135 Iowa 398,112 N.W. 550. The original opinion determined the issues and theories on which the case was submitted in the district court and in this court. The petition for rehearing is an abandonment by petitioners of their original position that the determination of the appeal depended on certain facts. They now claim such facts in no way determine the issue. Regardless of what might have been the outcome on this appeal had petitioners presented in the original submission the matters now for the first time *Page 265 argued, we see no reason for making an exception to the above-mentioned rule so many times laid down. In the other matters argued in the rehearing petition we find no reasons for granting a hearing.
The petition for rehearing is overruled.