On Petition for Rehearing
By the Court,
Norcross, J.:Appellants have petitioned for a rehearing upon the ground that this court did not pass upon appellant’s contentions that the court below was without authority in an action of this kind to determine the interests of the heirs of the estate of Margaret Winters, deceased; that that could only be done in probate proceedings in the estate of Margaret Winters. This contention did not appear from the record to have been urged in the court below, was not mentioned in the assignment of errors, and was only slightly adverted to in the opening brief. While the point was specifically made in the closing brief, no authorities were cited in its support, hence we deemed it sufficient to determine the case upon the main contentions relied upon by the appellants. It was admitted' by the pleadings that Margaret Winters died intestate, and there was no dispute as to who were her heirs at law in whom her estate vested upon her death, and it was conceded that her estate had never been administered upon. There was no dispute as to the property mentioned in the decree standing of record in the name of Margaret Winters at the time of her death, but it was earnestly contended that a portion of the property affected by the decree was community property. The trial court had all the facts before it, showing conclusively that the property in question was separate estate. If the estate of Margaret Winters had been in course of administration, it may be that the decree should have been restricted to a direction for a *332reconveyance of an undivided one-sixth interest in the estate of Margaret Winters, leaving it for the decree of distribution in the estate matter to determine what that interest was. In the absence, however, of such proceeding ever having been instituted, we see nothing to prevent the court in this case making a decree in accordance with the facts before it.
The petition for a rehearing is denied.