(dissenting).
I am not able to subscribe to the foregoing opinion.
In my opinion the petition of George H. Reid for the probate of the will of Margaret G. Reid and appointing him as executor thereof, was a proceeding separate and distinct from the petition of Alvin F. and Almon G. Reid for letters of administration to be issued to them. In re Richardson’s Estate, 120 Cal. 344, 52 Pac. 832; 57 Am. Jur., Wills, sec. 761, p. 520; 68 C. J., Wills, sec. 599, p. 875.
The petition of George H. Reid was filed under R. C. M. 1947, sec. 91-801 et seq., while the petition of Alvin F. and Almon G. Reid was filed under R. C. M. 1947, sec. 91-1501 et seq. The second petition, that of Alvin F. and Almon G. Reid, was not filed until after the first one was heard and denied.
Each proceeding was instituted by different petitioners, and each presented different issues. The petition of George H. Reid resulted in a judgment denying the probate of the will. That judgment ended that proceeding. R. C. M. 1947, sec. 93-4701; State ex rel. Langan v. District Court, 111 Mont. 178, 107 Pac. (2d) 880, 131 A. L. R. 1474; 30 Am. Jur., Judgments, sec. 2, p. 821; 57 Am. Jur., Wills, sec. 935, p. 615. The filing of the petition of Alvin F. and Almon G. Reid thereafter for general *596letters was the initiation of a new proceeding, presenting new and different issues. I find no cases holding that every estate must be probated by one indivisible judicial proceeding dating from the filing of a petition to probate a will, where as here the will was held to be invalid and another petition filed alleging intestacy.
There are cases holding that when an administrator is appointed the administration of the estate is considered as one indivisible judicial proceeding from the appointment of the administrator until his discharge. In re Dobbins’ Estate, 36 Cal. App. (2d) 536, 97 Pac. (2d) 1051; Culver v. Hardenbergh, 37 Minn. 225, 33 N. W. 792. And see In re Pugh’s Estate, 22 Wash. (2d) 514, 156 Pac. (2d) 676, and 33 C. J. S., Executors and Administrators, sec. 12, p. 890.
But here the application of George Reid for his appointment as executor was not granted. It was denied. The will was denied admission to probate. That proceeding was ended by judgment denying the relief sought.
Here a new and separate proceeding was initiated to accomplish the administration of the estate. That proceeding was instituted by Alvin F. and Almon G. Reid. It took two separate and independent proceedings to procure the appointment of an administrator.
Under the facts here George H. Reid disqualified Judge Berg under the proceeding instituted by him in seeking the probate of the will and his appointment as executor. He disqualified Judge Downey and Judge McClernan under the proceeding initiated by Alvin F. and Almon G. Reid, which I think he had the right to do.
Since the affidavit filed by relator disqualifying Judge MeClernan was only the second disqualifying affidavit used by him in the proceeding instituted by Alvin F. and Almon G. Reid, I think Judge McClernan erred in striking it from the files and erred in retaining jurisdiction of the proceeding.