dissenting.
The record in this case discloses that appellant Gloria Maude Dolven on June 5, 1962, filed in the District Court for Umatilla County a petition for appointment as administratrix of the estate of Ethel E. Wheeler, deceased.
After alleging the death of Mrs. Wheeler, the petition set forth the fact that petitioner was the daughter of the deceased and the sole heir; that the estate consisted of real and personal property located in Umatilla and Morrow counties; that a will bearing the date of October 20, 1958, existed and had been deposited with the county clerk of Umatilla County; that the will of October 20, 1958, was not a valid will in that on or about the 4th day of May, 1959, Mrs. Wheeler had executed a subsequent will which revoked the prior will; that the subsequent will could not be found and the petitioner believed Mrs. Wheeler died intestate.
A hearing was had on the petition, and on July 30, 1962, the court in a memorandum opinion denied the petition and directed that the will of October 20, 1958, should be offered for probate. On August 3, 1962, a formal order was entered dismissing the petition and directing that the will of October 20, 1958, “be offered for probate.”
*311On August 6, 1962, the will of October 20, 1958, was offered for probate in common form. On August 13, 1962, the will was admitted to probate and, as provided in the will, Gloria Maude Dolven and The First National Bank of Oregon were appointed as co-executors of the estate of the deceased.
On September 5, 1962, Gloria Maude Dolven and Bussell Baymond Dolven filed their petition in the District Court to set aside and declare null and void the will of October 20, 1958, upon the same grounds that they had sought to have the contestant Gloria Maude Dolven appointed administratrix of Mrs. Wheeler’s estate.
By answer, The First National Bank denied the allegations of contestants’ petition and alleged the issues were identical with those presented by the contestants in their petition for appointment of an administratrix; that the order denying the appointment had not been set aside and was still in full force and effect; that the rights of the parties were fully determined in the former proceeding and contestants were barred by the doctrine of res judicata from prosecuting this suit.
On October 2, 1962, the cause was transferred to the Circuit Court for Umatilla County. Trial was had in the circuit court and a judgment entered denying contestants’ petition to revoke the will of October 20, 1958, and admitting that will to probate in solemn form.
From that judgment the contestants have appealed.
The first assignment of error is based on the trial court’s finding that the petition for appointment of Gloria Maude Dolven as administratrix was res judicata and, therefore, barred the contestants’ right to contest the will of October 20, 1958.
*312District courts on their creation were granted the same jurisdiction in probate matters as had formerly been granted to county courts. ORS 46.096. Probate jurisdiction is granted by ORS 5.040, which is as follows :
“County courts having judicial functions shall have exclusive jurisdiction, in the first instance, pertaining to a court of probate; that is, to:
“(1) Take proof of wills.
“(2) Grant and revoke letters testamentary, of administration, of guardianship and of conservator-ship.
“(3) Direct and control the conduct, and settle the accounts of executors and administrators.
“(4) Direct the payment of debts and legacies, and the distribution of the estates of intestates.
“ (5) Order the sale and disposal of the property of deceased persons.
“(6) Order the renting, sale or other disposal of the property of minors.
“(7) Appoint and remove guardians and conservators, direct and control their conduct and settle their accounts.
“(8) Direct the admeasurement of dower.”
ORS 5.050 provides for the transfer of any contested probate matter, except a creditor’s claim for less than $500, to the circuit court on the court’s or any party’s motion.
It is well-established in this state that wills are, in the first instance, admitted to probate in common form. That is, there is an ex parte proceeding by which the validity of the will is established on the affidavits of the attesting witnesses and without notice to the interested parties. Heirs of Clark v. T. A. and J. D. Ellis, 9 Or 128; Richardson v. Green, 61 F. 423; ORS 115.170(1).
*313OBS 115.180 provides:
“(1) When a will has been admitted to probate, any person interested may, at any time within six months after the date of the entry in the court journal of the order of court admitting such will to probate, contest the same or the validity of such will; but, if a person entitled to contest the probate of a will or the validity thereof is laboring under any legal disability, the time in which he may institute such contest shall be extended six months from and after the removal of such disability.”
OBS 115.170(3) provides:
“* # * in case of contest of a will or the probate thereof in solemn form, the proof of any or all material or relevant facts shall not be made by affidavit, but in the same manner as such questions of fact are proved in a suit in equity.”
It seems quite clear from the foregoing that the validity of a will may be determined only after it has been offered for probate in common form and the time permitted for contest has expired, or in a suit brought to set aside a will already admitted to probate.
Since the will of October 20, 1958, had not been offered for probate at any time, either before or during the proceedings for the appointment of an administratrix, and was offered for probate in common form only after these proceedings had terminated, a cause of suit to set aside a will had not yet arisen and, therefore, it must follow that at this juncture the probate court was without jurisdiction to determine the validity of the will.
The probate court could only determine in that proceeding that a will existed which was prima facie entitled to be offered for probate, and, therefore, an administratrix should not be appointed.
*314Since the prohate court was without jurisdiction to pass upon the validity of the will until it was offered and a contest had been commenced, it follows that the judgment itself would not bar the petitioners from contesting the will after it was offered for probate.
The doctrine of res judicata, however, is not limited to the effect of a judgment as a bar to the prosecution of another cause of action or suit upon the same claim, it also precludes the relitigation of particular facts or issues in subsequent actions or suits on a different cause of action between the same parties. Winters v. Bisaillon, 153 Or 509, 57 P2d 1095, 104 ALR. 968.
Since the only issue raised by the contest is whether this was in fact the last will of the deceased and this was an issue before the district court in the petition for the appointment of an administratrix, the question then posed is: If the district court had jurisdiction to determine that issue independent of the usual issues, such as testamentary capacity, that arise generally, would this constitute an estoppel by judgment?
It must be kept in mind that we are not here dealing with the appointment of a special administrator for a special purpose, but are considering the granting of letters of general administration of an intestate’s estate.
The courts are in unanimous agreement that the granting of general letters of administration is based upon a finding of intestacy. 33 CJS 920, Executors and Administrators § 30. And the nonexistence of a will is a prerequisite to such a grant. 21 Am Jur 398, Executors and Administrators, §44.
No citation of authority is necessary for the statement that a finding of intestacy can be based only upon proof of the nonexistence of a will or proof of *315the invalidity of an existing will. If a will exists which is apparently valid upon its face, a court of probate may not issue letters of general administration. In re Wedemeyer’s Estate, 300 NYS 1201, 253 AD 768; In re Estate of Whitehouse, 223 Iowa 91, 272 NW 110; Weichold v. Day, 144 Kan 432, 61 P2d 1328.
It, therefore, appears that had the district court issued general letters of administration they would have been a nullity and it was unnecessary to the decree that the invalidity of the will be determined. There can be no doubt but that a district court has jurisdiction in the first instance to determine the validity of a will in a proceeding brought for that purpose. Richardson v. Green, supra; ORS 5.050.
But the proceeding for the appointment of an administrator is a different proceeding from that to have a will, apparently valid, declared null and void. Since the two proceedings are different, the rule of res judicata by judgment if applicable to this proceeding must be the rule of collateral estoppel. Gwynn v. Wilhelm, 226 Or 606, 360 P2d 312.
The rule of collateral estoppel is applicable “* * * only where the facts determined are essential to the judgment. Where the jury or the court makes findings of fact, but the judgment is not dependent upon these findings, they are not conclusive between the parties in a subsequent action based upon a different cause of action.” Restatement, Judgments 309, §68(o).
In the proceeding for the appointment of an administratrix it was necessary for the district court to find only that a will existed which was entitled to be admitted to probate in common form. It was not necessary to determine its validity in that proceeding.
For the reasons above stated, I dissent to the majority opinion.