The respondents have petitioned for rehearing on the ground that in their opinion "the court has overlooked some of the facts of the case and has failed to give others their true value."
They say: "Upon the point of jurisdiction we have no quarrel with the law as stated by the court. It is only in the application of the law to the facts of the case that we believe error has been committed."
As to what was stated by this court on appeal to be the law on the point of jurisdiction, and as to its application of the law to the facts of the case will be found reported in 51 Pac. Rep.
Petitioners for rehearing present in their petition, substantially, the same points and arguments as they presented on the hearing of the appeal. These we carefully considered before, and have as carefully considered them again on this petition, and we are satisfied that the law on the point of jurisdiction, as stated by the court and admitted by counsel to be correct, was properly applied to the facts of the case, unless the plain provisions of the statute relating to the partial distribution of the estates of deceased persons should have been disregarded by the court, and this we do not concede.
After stating the allegations contained in the pleadings of the respective parties, counsel say: "Suppose that, under these allegations, the court had found that there was no community property and had ordered distribution of the separate property, one-half to each of the parties, just as distributed in this case, would there have been any question concerning the jurisdiction to distribute the separate property? If not, then it must be that jurisdiction depends upon the evidence produced and not upon the case made by the petitions which is an inadmissible proposition under all decisions." Counsel overlook "the case made by the petitions" as finally submitted.
It is true that by their petition they denied that any of the property was community property and alleged that it was all separate property. But the parties stipulated that certain *Page 216 described portion of the property was community property and certain described portion was separate property. This stipulation had the same legal effect as if the said denial and allegation had been stricken out of the petition of the respondents by their amendment thereto. The petitions then presented a case for the partial distribution of separate property to the appellant and the respondents as heirs with respect to that property, and a case for the partial distribution of the community property to the appellant, claiming the same as surviving wife of the deceased, and to the respondents, claiming one-half thereof as grantees of the appellant.
Neither petition showed that the respondents were entitled to any portion of the community property, as heirs, and could not do so. Then, can it be said with reason that the court had authority to give a decree distributing it to them under the allegations of the petition of either party or both, without ignoring the provisions of the statute with respect to the distribution of estates of decedents?
We are asked to place a construction upon the said contract entered into between the parties. We held before that the consideration and determination of the meaning of that contract were matters foreign to the proper subject matter before the district court, and that it was not proper for that court to pass upon the questions involved therein in that proceeding, nor proper for this court to do so on this appeal. We are clearly of the same opinion now. Whatever construction this court might give would be meredictum.
*Page 217The rehearing is denied.