¶1(concurring specially).
¶2I concur in the foregoing opinion but in view of the contentions made by counsel for respondent believe reference should be made to the California case of In re Reynold’s Estate, 217 Cal. 557, 20 Pac. (2d) 323, and the cases therein referred to.
¶3It is pointed out by counsel for respondent that the California statute, sec. 1322, Code Civil Procedure, relating to ancillary proceedings, was amended in 1911 by adding the phrase, “or shall have been a resident at the time of his death” and that our legislature made exactly the same amendment in 1939 to what is now E. C. M. 1947, sec. 91-1001. They contend that by adopting the amendment made in California, Montana also adopted the construction placed upon it by the California courts before the amendment was adopted in Montana. The correctness of this rule cannot be doubted, but the question before us is whether the rule may be applied under the facts here presented.
¶4The point overlooked here is the fact that the Eeynolds Case is not comparable to this because in that case the will had been admitted to probate in Illinois in proceedings valid on their face and wherein the Illinois court found that decedent was a resident of that state when he died. Here the petition presented to the California courts on what is claimed to be the original *568application for probate of tbe will shows that the decedent was a resident of Montana at the time of his death, which fact negatives jurisdiction in the California courts to grant the original application for probate of the will. Hence when the application for ancillary proceedings was made in Montana, there had been no valid original probate proceedings on which to base application for ancillary proceedings.