(concurring): In writing an opinion for a majority the opinion of necessity must be restricted to views in which the entire majority concurs. While I agree with the opinion of the majority as written I am personally persuaded certain portions *356thereof merit far greater emphasis than they have received. It would also appear there is some disagreement among certain members of the court relative to the exact issues presented by the appeal. For these reasons I prefer to state my personal views.
In the first place it appears necessary to emphasize the fact that in this appeal we have no question whatsoever for review with respect to the precise procedure or the extent thereof which an opponent of a will is required to pursue in the probate court in opposition to a will. It also appears necessary to emphasize that we have no question here for review relative to the particular provision or provisions of the civil code which are applicable or which are not applicable under the provisions of G. S. 1943 Supp. 59-2213, in a proceeding to vacate or set aside an order of probate. The statutes pertaining to both of the above mentioned subjects are important in this case only as they reflect a general legislative intent -and purpose to give to probate courts exclusive original jurisdiction over proceedings in opposition to a will and to vacate an order of probate in the probate court. The mere fact there may be some conscientious difference of views among ourselves as to the details or extent of the procedure with respect to those two matters, which it appears the legislature intended the opponent of a will should pursue in the probate court, is wholly beside the point in this particular appeal. A determination of those matters is entirely outside the issues of this appeal and a discussion of the required details of such procedure merely tends to confuse rather than to clarify the precise issue now presented. In this case the opponent of the will took no steps of any kind or character whatsoever in the probate court to prevent the probate of the will or to have the order of probate vacated. In other words she completely ignored the exclusive original jurisdiction of the probate court to give her the precise relief she now seeks on appeal, namely, to have the probate of the will refused. She gave the probate court no opportunity or occasion to refuse to probate the will. It therefore follows we need not and certainly should not determine in this appeal what her precise procedure and the extent thereof would have been in the probate court had she invoked its jurisdiction.
The question decided by the trial court, and now here for review, is whether the exclusive original jurisdiction and power of the probate court to refuse to admit a will to 'probate can be completely ignored by the opponent of a will. If it can be ignored. then, of *357course, that court does not have the exclusive original jurisdiction and power to refuse to admit a will to probate. Appellee contends that jurisdiction can be ignored. She contends she can oppose the probate of a will by contesting it originally in the district court. It is conceded that is precisely what she has attempted to do in this case. Her contention is based in part upon the theory that generally an appeal lies from a default judgment, and next that G. S. 1943 Supp. 59-2401 provides, without qualification, for appeals from- “. . . an order admitting, or refusing to admit, a will to probate.” I would have no great trouble agreeing with either theory if the question now before us actually was governed by general principles and could be divorced completely from other appeal provisions and related probate code provisions and from our own previous far-reaching and emphatic decisions interpreting related provisions of the new code.
It seems to me it should be emphasized more strongly that the above appeal statute is not the only appeal statute which throws light upon the subject of the exclusive original jurisdiction of the probate court to make an order refusing to probate a will. G. S. 1943 Supp. 59-2408 is most illuminating on that specific subject. ■It provides.
“Upon the filing of the transcript the district court, without unnecessary delay, shall proceed to hear and determine the appeal, and in doing so shall have and exercise the same general jurisdiction and power as though the controversy had been commenced by action or proceeding in such court and as though such court loould have had original jurisdiction of the matter. The district court may allow or require pleadings to be filed or amended. . . .” (Emphasis supplied.)
In my way of thinking the words in that appeal statute, to wit: “. . . as though such court would have had original jurisdiction of the matter,” clearly leave no room for appellee’s contention that the legislature intended objections or defenses to the probate of a will could be made originally in the district court and that such court could make the original order refusing to admit the will to probate. The further provision in the same appeal statute which authorizes the district court to permit the pleadings to be amended in that court is additional evidence the legislature intended pleadings in opposition to a will should be filed in the probate court and that the latter court should first have ruled upon the contentions of the opponent of a will.' That construction of the above appeal statute is in complete harmony with the statute which requires written defenses to be filed *358in the probate court to a petition for probate. (G. S. 1943 Supp. 59-2210.) We need therefore read nothing into the appeal statutes that is not there in order to conclude opposition to a will was intended to be asserted in the probate court prior to perfecting an appeal from the order of probate. It seems to me the conclusion is most logical. Moreover it rests upon well-established principles of law. The conclusion results from a consideration of the various appeal statutes instead of a consideration of only some of them. It rests upon a construction of the appeal statutes which is in harmony with other related statutes which require written defenses to a will to be filed in probate courts vested with exclusive original jurisdiction in the premises. Furthermore the conclusion is in harmony with our previous decisions on the exclusive original jurisdiction of probate courts over any kind of action which, in effect, is a contest of a will. A contrary construction of the appeal statutes is completely out of harmony with our numerous previous decisions and inevitably will result in confusion and defeat of the legislative intent.
It has been argued in substance that since the district court on appeal may order the filing of new pleadings or amended pleadings in that court, there can be no finality of judgment anyway until the district court has rendered judgment and hence nothing effectual is accomplished by statutes which require the filing of written defenses to the probate of a will in the probate court. I do not agree with the contention but for reasons to be stated presently I do not consider the contention as serious. Moreover the contention is not new. It has been made by able students of the new probate code since its adoption. There are also good lawyers who believe the old provision which allowed an independent contest action to be filed originally in the district court should be reenacted. But what have all these arguments, good or bad, to do with judicial interpretation of the legislative intent as evidenced by the existing law? Not one thing. Such arguments merely go to the wisdom of legislation which is a legislative and not a judicial prerogative.
In cases too numerous to require citation, under the old and new code, we have said that any action which challenges a probated will and its validity to pass title to property is in effect a will contest action and as such must be instituted in the probate court. We are now reminded those actions were filed originally in the district court and hence are distinguishable from the instant case which is an appeal from the probate court. The attempted distinction, in my opin*359ion, is entirely without merit in principle. For all purposes, practical or theoretical, the instant objections to the probate of the will, designed solely for the purpose of defeating the will and clearly constituting in fact a contest of the will, were filed originally in the district court. The objections to the will never were asserted in the probate court in any manner or form whatsoever. They have been filed and asserted only in the district court. In Foss v. Wiles, 155 Kan. 262, 124 P. 2d 438, we held:
“An action filed in the district court for the specific performance of an oral contract with a decedent which challenges the right of the testator and the validity of the probated will to pass title to property belonging to a decedent’s estate to the persons therein named, is in effect an action to contest the terms and provisions of the will, over which action district courts now have only appellate jurisdiction.” (Syl. ¶ 7.) (Emphasis supplied.)
In the course of the opinion in the Foss case we made the following summary:
“A careful study of the provisions of the new probate code leads us to conclude it was the intent and purpose of the framers of the Kansas probate code and of the legislature which enacted it to grant to probate courts exclusive original jurisdiction over all matters incident 'and ancillary to the settlement and distribution of decedent estates, except as to any matter over which that code expressly confers concurrent jurisdiction upon district courts.” (p. 270.) (Emphasis supplied.)
The above statements of the law have been quoted verbatim or in substance time after time in our subsequent decisions. Are we repudiating them now? If so we should do so promptly and clearly in order that lawyers and judges may know that interested parties need no longer present originally in the probate court matters which are incident and ancillary to the settlement and distribution of a decedent’s estate. If the instant appeal to the district court is held valid then interested parties may present matters originally in that, court which are not only incident and ancillary to the settlement and distribution of a decedent’s estate but they may present matters which completely alter the administration, settlement and distribution of an estate.
If the district court had jurisdiction of this proceeding or action instituted by appellee in the district court in which she challenges for the first time the capacity of the testatrix to make the will and the validity of the entire probated will to pass title to those named in the will, then all defenses to a will which would defeat the validity of the will, or any part thereof, to pass title to property to those named therein, may be asserted originally in the district court on *360appeal from an order of probate. A party aggrieved by the will, although he has received due notice of the hearing for probate, may then ignore that hearing and the probate court generally and merely appeal from the order of probate. In the district court he may then for the first time contest the validity of the will to pass title to beneficiaries thereof by establishing his own title to the decedent’s property under an assignment, deed, contract, trust or by any other appropriate means which defeat the terms of the will. This could and would be done notwithstanding we have emphatically and repeatedly declared the intent and purpose of the new code was to require claims of title to all or any portion of a decedent’s estate to be asserted originally in the probate court, except where otherwise provided.
At this point I pause to say that when we repeatedly held any action in the nature of a “will contest” had to be filed originally in the probate court we knew there was an appeal to the district court from the judgment to be rendered by the probate court. Notwithstanding our full knowledge of such right of appeal we did not refuse to require the action to be filed originally in the probate court upon the theory the new probate code was not sufficiently specific with respect to the details and the extent of the procedure the opponent of a will was first required to follow in the probate court. Nor did we say that since the action could be tried de nova in the district court anyway, there was nothing to be accomplished by requiring the party to seek original redress in the probate court. We required the redress to be sought originally in that court because that was our interpretation of the legislative mandate as evidenced by the new code.
I do not regard the decision involving appeals from a default judgment of a justice of the peace court, relied upon by appellee, as controlling here. Those were decisions in damage actions over which justice of the peace courts do not have exclusive original jurisdiction. The appeals were to the district court, a court of concurrent original jurisdiction in such actions. The question of the right of a party to evade or ignore a court having exclusive original jurisdiction of the action and defenses was not involved and, of course, could not have been determined in those cases.
In the instant case, as heretofore stated, the probate court has the exclusive original jurisdiction to hear defenses to a will and to sustain the defenses by— “. . . an order refusing to admit a will to probate.” Appellee gave that court no opportunity to hear her *361defenses and to make an order refusing to admit the will to probate. She now seeks that identical relief originally in a court which does not have original jurisdiction to make such an order. She cannot change the law and confer original jurisdiction on the district court to make such an order by evading the exclusive original jurisdiction of the probate court.
I do not deem it necessary to say much with reference to paragraphs 5 and 6 of the syllabus and corresponding portions of the majority opinion. The cases cited in that opinion clearly determine that claims or demands to all or a portion of a decedent’s estate asserted on the theory a person has title thereto are within the demand statute of the probate code. (G. S. 1943 Supp. 59-2239.) If the statement of the law in paragraph 5 is too broad we should frankly overrule or modify our previous decisions as paragraph 5 is substantially a quotation from the opinions in those cases. (See particularly Shively v. Burr, 157 Kan. 336, 342, 139 P. 2d 401; Burns v. Drake, 157 Kan. 367, 371, 139 P. 2d 386; and cases therein . cited.)
Of course, in the absence of a will an heir at law is not required to file a claim or demand to a distributive share of a decedent’s estate. If, however, it is to be determined now that an heir at law is not required to assert his rights to a portion of the estate in some form in the probate court when there is a will which completely ignores him and which he contends is invalid, then we should overrule what previously has been said concerning the necessity for filing claims based upon the law of intestate succession. (See Egnatic v. Wollard, 156 Kan. 843, 856, 137 P. 2d 188; Shively v. Burr, supra, p. 340; and Burns v. Drake, supra, p. 370.) Manifestly the instant proceeding by appellee to have the will declared invalid had only one purpose which was that she might receive her portion of the estate under the law: of intestate succession. The trouble is she instituted that proceeding originally in a court which did not have original jurisdiction thereof.
The fundamental fallacy of appellee’s entire contention is that while she admits the probate court is vested with exclusive original jurisdiction over proceedings of a proponent of a will designed to obtain, “an order admitting a will to probate,” she denies that court has the same exclusive original jurisdiction over proceedings of an opponent of a will instituted for the purpose of obtaining, “an order refusing to admit a will to probate.” True the opponent of a will *362may appeal to the district court from an order admitting a will to probate but manifestly not before seeking the relief desired in the forum having exclusive original jurisdiction to grant that relief. On appeal to the district court that court tries the case “as though the controversy had been commenced by action or proceeding in such court” and “as though such court would have had original jurisdiction of the matter.” (Appeal statute, G. S. 1943 Supp. 59-2408.)