I concur in the result but I disagree with the syllabus and its corresponding part in the opinion, which, in effect, makes it mandatory to dismiss a cause of action filed against an executor for breach of fiduciary duty if the action is not filed in the district court that first acquired jurisdiction over the probate proceeding. It appears to me that both courts have jurisdiction and that the second court should decline to exercise jurisdiction either by dismissing the action or, if necessary to prevent injustice, by transferring it to the county in which the probate proceeding is being administered.
In my opinion, the trial judge did not abuse his discretion in this case by declining to accept jurisdiction.