(dissenting).
I respectfully dissent.
Prior to the enactment of the Probate Code in 1963, a proceeding to set aside a will was an independent action which was required to be brought within the period set out in what was then subsection 3 of section 614.1 of the Code of Iowa.
That subsection was repealed at the time the Probate Code was adopted, and we now have a new procedure by which one may challenge the validity of a will. The Probate Code did not, as the majority suggests, merely shorten the period for filing a will contest from two years to one, which could have been accomplished by a simple amendment to section 614.1(3) ; on the contrary it effected basic changes in the procedure itself.
Part 5 of the Probate Code deals with “Actions to Set Aside or Contest Wills.” It covers three possible methods of attack. One may ask to have a will set aside by filing a petition in the prohate proceedings within one year from the executor’s second publication of notice of admission of the will to probate (sections 633.308, 633.309) , one may file objections to the probate of the will (section 633.310); or one may seek a declaratory judgment to establish a will (section 633.320). As in the majority opinion, all references to the Probate Code are to the 1966 Code of Iowa.
I find it significant that only in section 633.320 authorizing suit for declaratory judgment, which is a separate action not part of the prohate proceedings, is the language that a party “may bring an action,”
Elsewhere in Part 5 of the Probate Code, and specifically in sections 633.308 and 633.309, the legislature says a petition may be filed in the probate proceedings. This it seems to me, indicates an intention to distinguish between the filing of a petition, *327on the one hand, and the bringing of an action, on the other.
If what was done here is “bringing an action” to contest a will, then I concede the majority is right. However, all the provisions of Part 5 make such a conclusion untenable. Why, for instance, if that is the case, should the legislature talk at all about notice? Rules 48 and 49 would, of course, apply as they do in all such cases.
Yet here there is a special provision as to serving a notice. (section 633.312) Again it should be noted the section does not state an original notice should be served; it merely refers to a notice, which shall be served “pursuant” to the Rules of Civil Procedure. Under the circumstances here I take this to mean the manner, not the time, of service. There is no language justifying the implication, especially in view of the express provisions of sections 633.308, 633.309, that this requires the notice to be served within the one year period.
To hold with the majority it must be assumed the legislature used the term “file a petition” interchangeably with “bring an action” and used “notice” interchangeably with “original notice.” I have been able to find no previous occasion when it has done so. “Original notice” has always had a precise meaning under our rules and it has been used in that technical sense; it immediately suggests jurisdiction is involved. Why was its use avoided here?
I cannot believe the legislature inadvertently used “file a petition” to mean “bring an action” nor that “notice” was intended to mean “original notice.” I find this particularly true because section 633.320, dealing with the same subject and authorizing a separate declaratory judgment action, expressly provides such action may be brought. Incidentally I might add, too, this section omits any mention of notice for the obvious reason this matter is covered, as always when suit is brought, by Rules 48 and 49, RCP.
I would hold the statutory procedure here is not the bringing of an action and that the filing of the petition alone is sufficient to confer jurisdiction. To the extent that section 633.304 conflicts with this — and that is the only section which lends support to the majority — I simply say such conflict should be resolved for, not against, a litigant who has complied with the exact terms of sections 633.308 and 633.309 and who now finds himself dismissed out of court because of it.
I would reverse and remand for trial.
BECKER, J., joins in this dissent.