I concur in the result reached; however, I cannot agree with all that is said in the opinion of the court. The decision is based on the principle that an appeal does not lie from an order denying a new trial. It further appears to me clear that the order of the district court is simply an order *Page 525 in probate and may be treated only as such. If the court by its order, which seems apparent, attempted to adjudicate a title to the property in question, it was acting completely outside its jurisdiction while it was sitting in probate considering only a probate matter. (In re Tuohy's Estate, 33 Mont. 230,83 P. 486; In re Dolenty's Estate, 53 Mont. 33, 161 P. 524; In reJennings' Estate, 74 Mont. 449, 241 P. 648.)
It would seem obvious, therefore, that the discussion of the status of the bank account and the account in which Gerald Sullivan was interested, has no place in this decision. Those matters are for future litigation if those interested so desire, and this court, with the record before it which contains no formal pleadings, no issue framed and no evidence based on formal pleadings or issues framed, should not attempt to indicate in any way the result that should be reached or to indicate the law to be applied in the event those matters are litigated. The discussion of the merits of the case is at best purely obiterdictum, as the decision of the court is not based in any way upon the merits.