The folloAving opinion on motion for rehearing was filed October 19, 1905. Rehearing denied:
Per Curiam.In this case the appellees have filed a motion for rehearing, principally upon the ground that the newly discovered evidence offered is not sufficient to justify this court in reversing the ruling of the lower court, by which a mwv Irial in that court Avas refused. Tills motion is supported by an exhaustive and able brief Avhich revieAvs the main features of the Avhole case. We have studied this brief and the parts of the record to Avhich it refers with great inter*206est. Manifestly the whole record., including the evidence offered upon the application for a new trial in this court, presents issues of fact which are peculiarly within the province of a jury to try, and upon this reexamination of the case we are entirely satisfied that the additional evidence offered in the district court upon this application for a new trial is of such a character that the interests of justice demand that the whole evidence together be submitted for a determination of the issues presented. Upon the evidence as it now is in this record, it would be the duty of the district court to set aside its former judgment upon the probate of the will, and the orders of the county court in that regard, and retry the whole case presented by the proponents and contestants of both of the alleged wills respectively. The language used in the former opinions of this court, commenting upon the evidence of the various witnesses, was used with reference to the questions presented in this court only, and was not a discussion of the weight that should be given to this evidence upon a new trial of this case. The court will apply the law of the case so far as it has been determined by this court, but the discussion of the evidence here will not restrict the trial court in its examination and submission of the questions of fact.
The motion for rehearing is
Overruled.