(dissenting): In its terms the appeal statute (G. S. 1943 Supp. 59-2401), gives unconditional right of appeal from “an order admitting, or refusing to admit, a will to probate.” In effect, the court now writes into this appeal statute the following proviso: “Provided, that no appeal will lie from an order admitting a will to probate unless opposition thereto has been asserted in the probate court.” It is argued that by doing this we effectuate the legislative intent as indicated by other provisions of the code and as interpreted in our recent cases dealing with the present probate code.
Assuming, for the moment, that we would have a more harmonious result and one more in line with the general legislative intent, embodied in the code, if a trial of the issues in a will contest were required in the probate court before appeal could be taken how far does the instant decision go toward achieving that end? Suppose the contestor has filed written objections but introduced no evidence. Has he established a right of appeal under this decision? I do not know. Certainly, in such a case, the issues have not been tried in any real sense. Or suppose, for instance, he files an objection to probate on the ground that the testator was mentally incom*366petent, offers only perfunctory evidence, and then appeals from an order admitting the will to probate. And then when he gets to district court he abandons the contention that the testator was incompetent and rests his cause entirely on a new allegation of “undue influence.” What is there to prevent his doing that as long as the trial upon appeal is de novo, with new pleadings permitted? If it was the legislative intent to prevent appeal by contestor of a will unless by trial in the probate court he has fully shown his hand, the door is still open for nullifying that intent.
I would not detract from what has been said in our recent cases dealing with the present probate code as to the legislative intent to give exclusive original jurisdiction to the probate court in matters relating to administration of estates. Every one of those cases, however, dealt with an attempt by a claimant to institute original action in the district court. None of them involved an appeal such as we have here in an action started in the probate court.
We are not justified, in my opinion, in attaching to the right of appeal a condition not found in the statutes. And the condition which this decision inserts by judicial construction is not only ineffective for accomplishing the legislative intent discussed in the opinion, but has disturbing possibilities as to appeals hitherto entertained in district courts. If it be thought that the present appeal statute leaves a loophole for evasion of the general legislative intent it is a defect to be corrected by the legislature — corrected by specific, effective, and safeguarded provision for actual trial in the probate court as a condition precedent to right of appeal, and with further provision that trial upon appeal, even though de novo, be limited to issues as joined in probate court.
I am authorized to say that Mr. Justice Harvey and Mr. Justice Thiele join in these views.