The following opinion on motion to modify opinion on rehearing was filed February 8, 1906. Motion overruled:
Sedgwick, C. J.The plaintiff has filed a motion to modify the language used in the memorandum upon the order overruling the motion for rehearing. In the brief and argument thereon it was contended that the language would admit of the construction that the district court could not take further evidence before setting aside the order of the county court appealed from and all proceedings in the district court *207thereon. This was not the idea intended. What was meant was that, if the evidence introduced before the district court upon the new trial which has been ordered should be the same as it now is in this court, it would be sufficient to require the district court to reverse the order of the county court in refusing to set aside the probate of the Rulo will. When the county court refused to vacate the default judgment probating the Rulo will, and an appeal to the district court was taken from, this order of the county court, what did that appeal remove to the district court? If the district court had decided it as the appellants wished, what would the district court have done next? Would it have certified back to the county court that the order of that court refusing to vacate the probate of the will was set aside and direct the county court to proceed to retry the question on the probate of the will, or would the district court have retained the whole matter, and proceeded to the trial of the will contest itself? If it did proceed to the trial of the will contest itself, of course it would have to investigate the question of the St. Louis will, because, if a subsequent will was made in St. Louis which operated to revoke the Rulo will, that would require the court to reject the Rulo will. Now, if the case had proceeded thus far, would the district court then proceed to consider whether the St. Louis will should be established and admitted to probate, or would it remit that question to the county court for trial — a question which it had itself already tried and determined?
The per curiam memorandum goes upon the theory that, when the first appeal was taken to the district court, it removed the whole controversy in regard to whether the estate was testate or intestate, so that the district court then had jurisdiction of the whole matter. Our view of the matter was that, as a new trial had been ordered, if upon that new trial the evidence should turn out to be the same as it is in this record, it would be the duty of the district court to decide that the county court was wrong in refusing to vacate the probating of the will, and, having *208decided that, it would be the duty of the court, of course, to declare the probate of the will by the county court vacated, and that then the district court would not remit the case to the county court, but Avoiild itself try the question as to whether the Rulo will should be established as the will of the deceased, and in trying that question would necessarily try also the force and effect of the St. Louis will. This would require the court to determine which will, if either, should be admitted to probate, so that this trial before the district court would be a trial of all the issues presented, and the parties would be entitled to a jury.
In the argument upon the motion Ave were led to believe that there may be some doubt about the practice so indicated, but in view of the prior holdings in this case, and the condition of the record, we conclude that our former memorandum, as here explained, indicates the correct practice.