On Motion for Rehearing. ,
Our opinion on original hearing contains this statement: “And the record here shows that the document which was admitted to probate in the superior court of Los Angeles county, Cal., as the last will and testament of said deceased, was the same document that was attempted to be probated in the county court of Tarrant county, Tex., and that no final decree of probate of the instrument as such will was ever rendered by the county court of Tarrant county, or any other court of Texas; the division agreement re*434ferred to above being executed as a compromise settlement of that litigation.”
Upon a re-examination of the record, we find that it contains no proof of the facts so recited, and the quoted statement and all other statements to a like effect in the original opinion are hereby withdrawn. The record before us contains no showing either supporting the statement or refuting it; it is simply silent upon that issue. However, appellants’ motion for rehearing embodies an allegation to the effect that the document purporting to be the last will and testament of John L. Jackson, deceased, which was attempted to be probated in the county court of Tarrant county, Tex., was not the same document that was probated in the superior court of Eos Angeles county, Cal., and referred to in our original opinion. In support of that allegation, appellant cites the opinions of the Court of Civil Appeals sitting in San Antonio, Tex., in two cases, entitled Warne v. Jackson et al., the first reported in 230 S'. W. 242, and the second in 273 S. W. 315. In both of those opinions it appears that the document which was attempted to be probated in the county court of Tarrant county, Tex., was one in which the appellant Warne was named as executor, and that the probate of it was successfully contested by Sarah Vestal Jackson, claiming to be the surviving wife of John E. Jackson, and Robert Ingersol Jackson, claiming to be the son of the deceased. If it be true, as insisted by appellant, that this court can take judicial cognizance of the facts recited in those opinions, then it would follow that the document offered for probate in Tarrant county was not the same as that which was probated in Eos Angeles county, Cal. But whether or not that be true is wholly immaterial to the conclusions we reached on original hearing in the disposition we made of this appeal. The erroneous statement was the result of an inference we drew from the reading of the record and was made merely in an effort to give a, history of the facts relating to the controversy before us. Hence, the point made by appellant, and stressed with so much earnestness in his motion for rehearing, that we have overruled the decisions of the Court of Civil Appeals of San Antonio in the cases cited above, is erroneous.
Upon examination of the record we find that in reply to the appellees’ plea of the statute of limitation of four years within which an application for probate of a will must be filed, the appellant pleaded and proved section 1299 of the Statutes of California (Code Civ. Proc.), which reads as follows: “Any executor, devisee, or legatee named in any will, or any other person interested in the estate, may, at any time after the death of the testator, petition the court having jurisdiction to have the will proved, whether the same be in writing, in his possession or not, or is lost or destroyed, or be yond the jurisdiction of the state, or a non-cupative will.”
Therefore the statement in the concluding portion of our original opinion that there was no pleading or proof by appellant of such a statute is withdrawn. However, as shown in our opinion, the conclusion we reached in disposing of the appeal was in no manner predicated upon the implied finding by the trial court sustaining the appellees’ plea'of limitation. On the contrary, we expressly said that we affirmed the judgment of the trial court solely on other findings by the court and jury.
With the corrections noted above, the appellant’s motion for rehearing is in all things overruled.