(concurring in affirmance). The appeal from probate to circuit was tried to the court without a jury, Honorable Alton H. Noe, circuit judge presiding. By stipulation of the contending parties, trial was had upon the complete probate court record. Starting with proceedings in probate, and continuing on through circuit to the judgment brought here for review, we have searched this record in vain for hint or suggestion by proponents that the widow’s petition for general administration did not operate — as a notice of' contest — to raise the issue of revocation as tried. In sum, that issue was whether the ultimately-destroyed will of April 14, 1955, legally revoked the submitted will of August 27, 1954. Actually, and so far as the record discloses, proponents did not question sufficiency of the petition as raising the issue until their reasons and grounds for appeal to this Court was filed. We think in the special circumstances shown here that the widow’s said petition did raise the tried issue of revocation and that proponents are in no position to assert otherwise.
The fact situation is not unlike that.shown in In re Reid’s Estate, 248 Mich 360. There an informal notice and affidavit — filed in probate court — gave notice only of contention that the instrument submitted for probate as the decedent’s will had not been executed in compliance with statutory requirements. Following certification to circuit, it was held that the notice and affidavit did not present issues of undue influence and mental incapacity and, the jurisdiction in circuit being appellate, that an amendment to include such issues was not permissible.
The difference between Reid and this case lies in the record of proceedings made when the contest set up by the respective petitions yet remained in probate court. Instead of statutory certification, the :broad issue made by such petitions — for probate of *350will on theory of testacy and administration on theory of intestacy — was fully tried on the merits in probate and all parties accepted such issue as including the disputed question of revocation. The disputed question having been tried and decided in probate absent objection addressed to sufficiency of the widow’s admittedly informal contestant pleading, and the point being technical rather than substantial, proponents on arrival in the circuit (appellate) court were in no position to insist that such issue was nonreviewable (In re Alexander, 136 Mich 518; In re Zick’s Estate, 205 Mich 681).
The issue of revocation was properly before the circuit court. Ample evidence, on which the trier of facts in circuit found that the submitted will had been revoked, is shown in the stipulated record. I therefore agree that the judgment in circuit should be affirmed.
Smith and Voelker, JJ., concurred with Black, J.