(concurring in part and dissenting in part): I concur in the affirmance of the judgment on the merits if the district court had jurisdiction. I agree with what Mr. Chief Justice Dawson has ably said on the subject of the jurisdiction of the probate court. A few additional observations may be helpful.
The question presented is not whether an opponent of a will may appeal from an order admitting a will to probate. The question is when may he do so. First, it is elementary that a litigant may not invoke the jurisdiction of a court and abandon its jurisdiction before exhausting the relief that court can grant. This is doubly true where that court has exclusive original jurisdiction of the subject matter. Second, under the provisions of the new code the opponent of a will is required to make proof in the probate court of his defenses to probate after a prima facie case for probate has been made if he desires to defeat its probate.
*25We may start with the conceded proposition that the probate court has the exclusive original jurisdiction to determine whether it will make an order admitting a will to probate or an order refusing to admit a will to probate. Upon what must that court determine the order it will make? Obviously upon facts — evidence—and not upon mere allegations in pleadings which join issues of fact. The proponent of a will is required to support the petition for probate with evidence. (G. S. 1943 Supp. 59-2212.) The opponent of a will is required to first file his written defenses. (G. S. 1943 Supp. 59-2210.) Why is he required to file such written defenses? Manifestly one reason for the requirement is that the probate court may know definitely upon what ground, or grounds, the opponent will endeavor to prove the will should be defeated. The law provides for a trial. It also provides that on the trial any issue of fact shall be determined by the probate court in accordance with rules of evidence provided for civil cases by the code of civil procedure. (G. S. 1943 Supp. 59-2212.) This section is new. See 2 Bartlett’s Kansas Probate Law and Practice, § 1023. It is thus apparent, and we have repeatedly held, that these various proceedings under the new code are now adversary in character. (Egnatic v. Wollard, 156 Kan. 843, 137 P. 2d 188; Shively v. Burr, 157 Kan. 336, 139 P. 2d 401; Burns v. Drake, 157 Kan. 367, 139 P. 2d 386; In re Estate of Grindrod, 158 Kan. 345, 361, 148 P. 2d 278.)
• The legislature has expressly provided'that in order for the opponent of a will to obtain the relief he seeks from the probate court there must be proof to support the requested order. G. S. 1943 Supp. 59-2213 provides:
“No judgment or decree shall be rendered in a probate proceeding without proof.”
See, also, 2 Bartlett’s Kansas Probate Law and Practice, §§ 1026, 1027. In the same work it is said:
“On a hearing for the probate of a will the burden of proof is upon the proponent of the will to show: (1) the testamentary character of the instrument, (2) the testamentary capacity of the testator, and (3) the due execution of the will in accordance with statutory requirements. These elements stand as the epitome of all the proponent is obliged to prove, and he may then rest upon the prima, facie case made by this proof. It is consistent to say that this prima facie evidence stands and prevails, unless and until it is overthrown by ascertained facts. After a prima facie showing is made the vital question in a contest of probate is whether the evidence of the opponents of the will in support, of their claim that the will is invalid is sufficient to overcome the prima facie *26effect of the proponent’s evidence, considered in connection with all the testimony. This is a question of fact upon all the evidence, including the will itself, the physical and mental condition of the testator, the nature and situation of his property, the natural claims of the legatees upon his bounty, his relations with and feelings toward them, and all the circumstances appearing in the evidence, aided by all reasonable and proper presumptions. The conclusion of fact to he deduced from all this is for the court as the trier of facts.” (§ 1064.)
The jurisdiction of a court is the power to hear and determine a controversy. (21 C. J. S., Courts, § 15, 14 Am. Jur., Courts, § 160.)
It constitutes no answer to say that proof was made by the proponent concerning the validity of the will and hence some proof was adduced in the probate court. The proponent is not appealing. It is the opponents of the will who are appealing from the order of the court which has the exclusive original jurisdiction to grant the relief they seek. Until the opponents comply with the law which requires them to make proof in order to obtain the relief they seek the probate court cannot grant that relief. Until they adduce that proof they are making it impossible for the probate court to grant them the desired relief. They are evading its exclusive original jurisdiction to determine the matter before it. Manifestly their appeal prior to making such proof is premature and the district court is without original jurisdiction to grant the desired relief.
How can the probate court retain its exclusive original jurisdiction to fully hear and determine whether a will should be declared invalid if an opponent of the will can circumvent that jurisdiction by perfecting an appeal to the district court and then for the first time introduce his evidence in opposition to the will? It seems to me the question answers itself. If such an appeal is permitted the exclusive original jurisdiction of the probate court to fully hear evidence in opposition to the will and to determine its order accordingly will be completely nullified. We repeatedly have held that an action which is designed to defeat a will must be asserted in the probate court. It violates every pertinent statutory provision for trials in the probate court and nullifies the spirit of the code generally to now concede such an action must be brought in the probate court, as we have repeatedly held it must be, but to hold that it need not be tried in that court. If the action need not be tried in the probate court then the probate court, of course, does not retain exclusive original jurisdiction to determine whether the probate of a will should be denied. The opinion of the majority completely overlooks *27the statutory provision for trials in the probate court and the provision for proof in that court. It rests its decision upon the technical ground that the appeal statute allows an appeal from an order admitting a will to probate. In the case of In re Estate of Grindrod, 158 Kan. 345, 148 P. 2d 278, we said:
“We do not believe we are justified in considering the appeal statutes entirely by themselves, as appellee does, and by so doing place upon them a construction out' of harmony with other provisions of the probate code and one which obviously defeats the clear legislative purpose to grant to probate courts the exclusive original jurisdiction in will contest actions.” (p. 350.)
Of course, the statute provides for an appeal from an order admitting a will to probate. It likewise provides for an appeal from an order refusing to admit a will to probate. (G. S. 1943 Supp. 59-2401.) But clearly the appeal statute, when considered with other related provisions of the code, as it must be in order to ascertain the true legislative intent, does not contemplate an opponent has a right of appeal from an order admitting a will to probate before the probate court has had an opportunity to consider the evidence in opposition to the will. In other words, the opponent has a right of appeal when he has exhausted the jurisdiction of the probate court to grant him the desired relief, and not before.
In Foss v. Wiles, 155 Kan. 262, 124 P. 2d 438, we not only said the probate court had authority to exercise exclusive original jurisdiction in a will contest action but that it was by statute required to exercise such jurisdiction in order to fully hear and determine any matter properly before it. (p. 269.) Clearly no such decision could be made if the facts — the evidence — upon which the decision must rest may be withheld from that court. In the later case of Yeager v. Yeager, 155 Kan. 734, 129 P. 2d 242, following Foss v. Wiles, we expressly said:
“District courts now have jurisdiction in such matters only upon appeal.” (p. 736.)
In Dixon v. Fluker, 155 Kan. 399, 404, 125 P. 2d 364, we said it was clearly intended the probate court should have the exclusive original jurisdiction to hear the claim on a contract for a portion of decedent’s real estate and that otherwise the provisions of G. S. 1941 Supp. 59-301 (12), which give the probate court authority and directs it to fully hear and determine such a matter would be meaningless. In Shively v. Burr, 157 Kan. 336, 139 P. 2d 401, an action in damages for wrongful death, did we say that all that *28was necessary was for'the action to be filed in the probáté court? No, indeed, we did not. After reviewing our numerous previous decisions under the new code we concluded: •
“We hold, therefore, that the probate court where the estate of William Burr was being administered had exclusive original jurisdiction to hear the demand of the plaintiff in this action.” (Emphasis supplied.) (p. 341.)
Manifestly that court could not hear a damage action without evidence. All of our previous decisions under the new code clearly have been based upon the theory and principle that the probate.court has exclusive original jurisdiction not merely to receive pleadings, which indeed would not constitute jurisdiction at all, but that it has exclusive original jurisdiction-to entertain, hear and fully determine any matter properly before' it. Obviously that would be an utter impossibility without evidence to support controverted issues of fact.
With all these past decisions pertaining to the extent of probate court jurisdiction the instant majority opinion is .in utter disharmony. Its practical effect is a complete repudiation of what this court with painstaking care, deliberate and conscientious consideration, has declared to be that court’s jurisdiction according to the clear intent and purpose of both the framers and enactors of the new code. The majority opinion now holds that a claim or contention designed to defeat a will need no longer be originally asserted in and submitted to th'e probate court for its consideration and determination but that all evidence concerning its invalidity may be entirely withheld from that court and adduced originally in the trial of an appeal to the district court. In such a wholly inconsistent decision and backward step which strikes at the very heart of both the express provisions and the plain spirit of the' new code, I cannot concur.
If the majority is correct in holding that an opponent of a will may appeal to the district court, although he has adduced no testimony in opposition to the will in the probate court, then by the same illogical reasoning the proponent of a will may appeal from an order refusing to admit a will to probate although -he has offered no evidence in support of his petition for probate. The result will be that the district court will acquire original jurisdiction' by judicial decree to hear evidence and to determine whether a will shall be admitted to probate. The majority opinion indeed will have far-reaching effects in denying the exclusive original jurisdiction of probate *29courts.- At this point we may well pause to inquire if the majority opinion is sound, then why cannot appeals be taken, without the introduction of evidence in the probate court, from the orders and judgment of the probate court concerning the twenty other subjects over which it has exclusive original jurisdiction, and from all of which appeals lie to the district court under the provisions of G. S. 1943 Supp. 59-2401.
The next question presented is the proper interpretation of G. S. 1943 Supp. 59-2408 with respect to the jurisdiction of the district court over matters not presented to the probate court. In my view the dissenting opinion of Mr. Chief Justice Dawson is the only practical and realistic interpretation that can be placed upon that statute. Moreover, his interpretation accords with the legislative intent and purpose as disclosed by other provisions of the new code. It is also in harmony with what we have said on the subject in the past. If entirely new matters may be raised in the district court the exclusive original jurisdiction of the probate court will be completely and effectually defeated. Of course, under such a practice the probate court would have had no opportunity to fully hear and determine the issues involved. If entirely new issues may be raised in the district court then this court will have placed its judicial sanction and approval upon a practice of effectually ambushing the probate courts. I cannot believe that was the legislative intent. (See my concurring opinion in the Grindrod case, p. 359-360.)
It will be noted G. S. 1943 Supp. 59-2210 does not permit an opponent of a will to file only one or some of his defenses. It plainly requires him to file his “written defenses.” That means all of his defenses and not merely one or some of them. In my opinion the legislature made that requirement not only for the benefit of the probate court, which previously has been noted, but also in order that the district court may be fully advised from the transcript of the record what defenses were actually filed in the probate court. On appeal the law requires the probate court to transmit to the district court a complete transcript of the proceedings pertaining to the matter in which the appeal is taken. (G. S. 1943 Supp. 59-2406.) The legislature gave the probate court exclusive original jurisdiction over all defenses and not merely over some of them.
In Erwin v. Erwin, 153 Kan. 703, 113 P. 2d 349, where the procedure on appeal in the district court under the appeal statute was involved we early were careful to emphasize the fact that the inter*30vening petition filed by a widow, the administratrix, in the district court in nowise raised new or different issues from those presented, heard and decided in the probate court. In that case an oral contract of family settlement was involved. We said it was necessary that such contracts should be submitted to and approved by the probate court. With respect to the issue in the district court we said:
“The issue was not changed by the intervening petition which was filed by the widow in the district court pursuant to statutory authority.” (p. 709.)
In the state of Michigan issues may be reframed in the circuit court (corresponding to our district court) on appeal from the commissioners on claims (corresponding to our probate court). In the case In re Gzella’s Estate, 265 Mich. 371, 251 N. W. 550, and in a well-reasoned opinion based upon other decisions, the supreme court held that the circuit court in reframing the issues properly refused to include a setoff which had not been asserted before the commissioners on claims. It did so upon the express ground and well-established principle that the circuit court had no original jurisdiction over claims against estates and that therefore no new claim could be asserted in the circuit court.
It certainly will be a most humiliating experience for 105 probate judges in this state to find that on appeal they are being reversed by district courts with regularity due to no error committed by them but upon issues entirely foreign to any ever presented -to them. It will no doubt be an astonishing revelation for them to learn that this court has declared it is wholly immaterial under our modern code that they should be apprised of the real, the honest, defenses to the probate of a will, and that such probate proceedings in 105 counties have degenerated into a mere pretext and sham at the expense of the taxpayers. Such a practice was not even permitted under the old code when probate courts were presumed to have far less jurisdiction and power than under the new code. In the case of In re Estate of Hartley, 148 Kan. 82, 80 P. 2d 1, we said:
“Another error is urged on our attention. It appears that in the mortgages securing the notes, which were the basis of appellant’s claims in the probate court, there were recitals assigning to the mortgagee the rents of the properties to be applied on any delinquencies in payment of insurance, taxes and the like. This matter was not called to the probate court’s attention. It was first raised in the district court when the cause was brought there on appeal. But while the cause on appeal is tried de novo, it is nevertheless an appeal, and the matter of rents was not before the district court at the time.” (Emphasis supplied.) (p. 87.)
*31In my opinion it will be just as great a surprise to the legislature which enacted the new code to find we have held it was its intention to make of the probate court such a useless tribunal. The majority opinion indeed is a marked reversal of our former announcements that the modern tendency of courts generally is to extend the jurisdiction of probate courts and that such was the declared purpose of this court long before the adoption of the new code. (Erwin v. Erwin, supra, p. 707; Foss v. Wiles, supra, p. 270.)
What about the principal issue raised in the district court, namely, the alleged oral contract? That contract, of course, could have been asserted by the opponents of the will as a basis for the settlement and distribution of decedent’s estate in contravention of the will. The question here is not whether a cause of action was stated upon the contract in the probate court. The point is that no attempt was made to assert such a contract in that court. That alleged contract was not even pleaded and, of course, it was not proved. As a means of contesting the will it was necessary under our repeated decisions that it be asserted first in the probate court. Since it was not there asserted by pleadings or proof, the district court acquired no jurisdiction over it as an instrument designed to contest the will. The only ground of contest ever pleaded in the probate court was that the signature of the testator was obtained by undue influence and coercion and no evidence was adduced in the probate court to support that contention.
The opponents of the will properly invoked the jurisdiction of the probate court which had the exclusive original jurisdiction and power to grant them the relief for which they prayed. They could not abandon that court without first exhausting its jurisdiction to grant them the relief they requested at its hands. Nor could they by such abandonment and a premature appeal confer jurisdiction on another court which was wholly without original jurisdiction to hear and determine their complaint.