On Motion for Rehearing.
DIXON, Chief Justice.In her motion for rehearing appellee again cites us cases which hold that in a will contest, or a hearing on an application to probate a will, the court is limited to two inquiries: (1) Is the instrument properly executed? (2) Is it the last will of the testator? Among the cases cited are Cate v. Cate, Tex.Civ.App., 235 S.W.2d 456; Pullen v. Russ, Tex.Civ.App., 209 S.W.2d 630; Zaruba v. Schumaker, Tex.Civ.App., 178 S.W.2d 542; Huston v. Cole, 139 Tex. 150, 162 S.W.2d 404; and Ellsworth v. Aldrich, Tex.Civ.App., 295 S.W. 206.
We do not disagree with the holdings in the cited cases, but in our opinion they are not applicable to the hearing in this case on appellants’ motion to dismiss. The issues presented by appellants’ motion were not concerned with the validity of the 1952 will. They challenge appellee’s right to ask probate of the 1952 will regardless of whether that instrument was a valid will or an invalid will. The motion, so to speak, erected a bridge which appellee had to cross before she could proceed with a contest of the 1945 will, or with her efforts to probate the 1952 will. The issues presented by the motion, though properly raised in the probate court and on appeal in the district court, were .correctly presented in a hearing preliminary to the proceedings to probate the will, and separate and apart from the proceedings to probate the will. This preliminary hearing on the motion to dismiss could not properly be limited to the two issues which, according to the cases cited by appellee, must limit a hearing to probate a will.
In her motion for rehearing appellee says: “This Honorable Court erred in ren*705dering final Judgment against the Appellee herein, after its reversal of the Judgment of the Trial Court, when the only possible judgment that should have been rendered upon reversal of the Trial Court would have been one remanding the cause for a new trial, since this Court has undertaken to render a final Judgment in the case upon issues not before the Trial Court, and not passed upon by the Trial Court, the issues of the effect of the release in this case, ap-pellee’s alleged election to take under the 1945 will, and her alleged estoppel not being issues that were adjudicated in the Trial Court in this cause.”
As we pointed out in our original opinion, in her third amended original petition, on which she went to trial, appellee abandoned all her allegations of a common-law marriage and eliminated entirely from her pleadings all attacks and defenses in regard to the settlement agreements and releases of August 17, 1953. Her petition was limited to a formal application to probate the 1952 will. Having no pleadings to support them, she could not and did not attempt to prove affirmative defenses, as to which she would have had the burden of proof.
Though appellee did not plead affirmative defenses, appellants, as a basis for their motion to dismiss, did plead the settlements and releases and their far-reaching effect. In addition they introduced the testimony of appellee herself, given at a previous trial, to support their contention that the settlements and releases were intended by the parties to cover and did cover all claims, rights or causes of action that appellee might have against the estate, including any rights, title, or interests in any portion thereof. Under the circumstances it was proper for us in determining the effect, scope and extent of the settlements and releases to look to appellants’ pleadings (that is, the motion itself), to the written releases, and to the testimony of appellee herself. That this is so is evidenced by the fact that appellee’s testimony was introduced by appellants without objection from appellee. Her testimony revealed what claims she had in mind when she executed the releases. Appellee in her brief devoted considerable time and space to a discussion of issues pertaining to the validity and effect of the releases.
To summarize, we think it was proper for us to comment on appellee’s testimony, though she herself did not plead affirmative defenses, (1) because it was proper for us to determine the scope and extent of the releases in the light of appellants’ pleading (the motion itself), the express terms of the releases, and appellee’s own testimony and the arguments in her brief; and (2) because all of the issues in question were covered by appellee in her testimony, or in her brief, or in both, and were therefore fair subjects for consideration and comment in determining whether to reverse and render judgment, or merely to reverse and remand.
The motion for rehearing is overruled.
YOUNG, J., not sitting.