On Petition foe Reheaeing.
Myers, J.18.
Upon petition for a rehearing appellees urge that the court is in error in holding that there can be but one matter determined upon contest of or resistance to the probate of a will, where the will, if probated, is valid for any purpose. We adhere to that opinion, the reasons for our holding being pointed out specifically in the opinion.
19.
But it is urged that as this court has frequently held that there can be but one resistance of probate, or contest by a party, the result would be that, even if the will be probated, appellees would be precluded from asserting any other rights they may have. Where the valid provisions of a will are sufficient to carry out some purpose of the testator, and are not so interwoven with invalid provisions that the entire will must be stricken down, there is a marked difference between resistance to the probate of such will, or its contest after probate, and the construction of the provisions thereof. If, as we have held in the main opinion, some of the provisions are valid, it must follow that parties cannot, in the suit to resist probate, have alleged invalid portions of a will construed. After probate, they may raise any question as to the validity of different provisions, under the well-established rule that the doctrine of former adjudication applies only in eases in which matters have been, or could have been determined under the issues formed, as determined by the pleadings. We think it very clear that upon an issue of probate or contest of a will, unless the instrument is wholly ineffective for any *31purpose, nothing can be determined except the. question of probate or contest to set aside the will and probate. Such proceedings have no effect upon the right to have particular provisions construed, even to the extent of striking them down entirely, if invalid. Hence there could be no error in the case in striking out objections which have no place in the resistance of probate, and questions which may arise upon construction of parts of the will are not affected or concluded by the fact of probate.
The petition is denied.