(dissenting): In my opinion a proper disposition has not been made of this appeal. Hereafter in referring to the probate code I shall refer only to the chapter and section thereunder as the same appears in G. S. 1943 Supplement.
I am in agreement with paragraphs 1 and 3 of the syllabus, as well as all but the last clause of paragraph 2, which I think is inaccurate. Where a purported will is offered for probate in the probate court any proper person in interest may defend, and if his defense is sustained there is no probate. There is no “will contest.” I believe that paragraphs 5 and 6 of the syllabus are too broadly stated, but as appears later my dissent is on other and more fundamental grounds and further discussion of these paragraphs is unnecessary.
In a preliminary way, it may be said that although the opinion makes repeated references to a “will contest,” that phrase cannot be found in the probate code. Here a will was offered for probate and after notice given, a hearing was had and the will was admitted. At that hearing there could be no judgment by default (59-2213, 59-2224). Insofar as Gala Gustafson was concerned the sole question in the probate court was “will” or “no will” and on appeal *363taken, that would be the question in the district court. The first and primary question is not the scope of the appeal, but whether an appeal lies, even though she made no appearance in the probate court, and so we proceed.
The substance of paragraph 4 of the syllabus is. that the district court has no jurisdiction to entertain an appeal from an order admitting a will to probate unless the appellant either files objections in the probate court, or if he does not do so, takes some steps in the probate court to vacate or set aside the order of probate. It may be observed that such a rule would be equally applicable to any order made in the probate court, whether it was the admission of a will to probate, the appointment of an executor, an order determining venue, allowing a demand, or any other order from which an appeal could be taken.
Sections 59-2401 et seq. of the probate code give a right of appeal from any order, judgment, decree or decision in twenty-one specific instances, including an order admitting a will to probate. In that whole article there is no limitation on the right of appeal, but on the contrary there is express statement of what must be done to make the appeal effective (59-2405). We are here concerned with jurisdiction of the district court and it may be observed that the code of civil procedure provides for an unlimited appeal to the district court from a judgment or final order of the probate court (G. S. 1935, 60-3301). The statutory situation is quite analogous to that obtaining where a party against whom a judgment is rendered in the justice of the peace court desires to appeal. That he is not precluded from appeal because he permitted judgment to be rendered against himself by default has been determined. (See Powers v. Schultz, 127 Kan. 598, 274 Pac. 735, and cases cited.)
That there is any limitation on the right of a person aggrieved to appeal, or that the district court is without jurisdiction, as set forth in the opinion, is derived or implied from other provisions of the probate code.
Some force is attributed to 59-2210, which prescribes the form of notice of the hearing of a petition and states the persons notified must file written defenses. Giving to the form of notice its greatest effect and that it requires written defense, wherein may it be said to be any stronger than, if as strong as, G. S. 1935, 60-2501, of the code of civil procedure providing for summons and requiring the defendant to answer or judgment will be taken against him? The *364fact defendant defaults may possibly limit scope of appeal, but that it robs the appellate court of jurisdiction is not correct. (See Wood v. Nicolson, 43 Kan. 461, 23 Pac. 587.)
A similar question was presented in In re Estate of Langer, 213 Minn. 482, 7 N. W. 2d 359. The statutes of that state expressly provided that no person could contest the validity of a will in the probate court unless his grounds of objection were stated in writing and filed at or before the hearing, and further that any person aggrieved by any order might take an appeal. The appellee in the district court moved to dismiss for the reason the appellant had been in the probate court at the time of hearing on the will but had failed to file objections to its allowance. The district court sustained the motion. On appeal to the supreme court it was held:
“A person financially interested in the allowance of a will in the probate court is a person aggrieved by an order of that court allowing the will and may take an appeal from such order although he was present in probate court upon the hearing on the will, filed no written objections, and entered no appearance therein.” (Syl. H 2.)
Attention is directed in the opinion to 59-2213 as supporting a rule that where a person duly notified files no written defense, he must proceed with motion for a new trial or other appropriate motion to vacate or set aside the order, judgment, decree or decision complained of before he may appeal. There is no provision in the probate code for any motion for new trial upon any ground set forth in the code of civil procedure (G. S. 1935, 60-3001) nor for any other post-hearing motions. Section 59-2213 makes reference to G. S. 1935, 60-3016, and is only a converse statement of a provision that has been a part of the code of civil procedure ever since the enactment of our first code of civil procedure (Terr. L. of 1859, ch. 25, § 554). If the provision of the code of civil procedure with respect to control of judgments by a court of record is to be given the force and effect now attributed to it, then it will introduce into probate practice many provisions of the civil code respecting pleading and will be contrary to the practice and procedure followed for many years in this state. Failure to file a motion for new trial in an appropriate case might conceivably limit scope of review, but it does not cut off appeal. See Arnall v. Union Central Life Ins. Co., 157 Kan. 535, 538, 142 P. 2d 838. No such application was made in In re Perkins, 145 Kan. 611, 66 P. 2d 420, a case quite like the one at bar, but which arose prior to the enactment of the present'probate code. It was there held:
*365“An order of the probate court admitting a will to probate is a final and appealable order and the district court has jurisdiction to hear the same.” (Syl.)
Under 59-2250 provision is made for proceedings to determine descent, and under 59-2252 provision is made for opening the judgment. In view of the care taken to insert the latter provision, it is significant no similar provision was made for other judgments, orders, decrees or decisions. Under general rules of statutory construction, the inclusion in the one case is to be interpreted as its exclusion otherwise. What is expressed puts an end to that which is implied.
As I view the matter the court’s conclusion is wrong from the standpoint of established pleading and practice on the one hand and of statutory construction on the other. To say that the district court is without jurisdiction in the circumstances is to say that in similar circumstances where an appeal was entertained and a judgment was entered in the district court, that judgment is void and may be vacated at any time. I cannot give my assent to a ruling by this court which makes that possible.
I am authorized to say that Mr. Justice Harvey and Mr. Justice Hoch concur in the views herein expressed.