(dissenting): Having concurred in the dissenting opinions of Mr. Justice Thiele and Mr. Justice Hoch I would say no more if it were not for the specially concurring opinion of Mr. Justice Wedell in which he seeks to fortify the opinion of the court by some of his personal views, apparently not concurred in by all of the justices who concurred in the opinion. This is predicated upon-the fallacious contention, among others, that in this case there was nothing before the probate court which gave it an opportunity to refuse to admit to probate the will in question. There was before the pro*367bate court the petition of the executor for the probate of the will. The burden was upon the proponents of the will to produce evidence to sustain the allegations of the -petition and justify an order of the court admitting the will to probate. It is conceivable that such evidence would have been lacking in some material respect, in which situation the court certainly would have had the power and authority as well as the duty of refusing to admit it to probate. So, the view advanced really comes down to the question of how much evidence there was before the probate court, and, analyzed through, perhaps means that the district court on appeal from an order admitting a will to probate would have no jurisdiction to hear evidence in favor of, or in opposition to, the will which had not been offered in the probate court.
The specially concurring opinion also points out a number of questions raised by the court’s opinion which are not decided by it. None of these questions would be floating around undetermined if the court would simply follow the statute (G. S. 1943 Supp. 59-2405), which prescribes the requisites for an appeal from the probate court to the district court. When this court abandons the statutory procedure for such an appeal and attempts to create one of its own it should make the one it creates as clear and as easily understood as the one it destroys.