¶1(dissenting). The majority are mistaken in their statement that there was no prayer for distribution of the estate. By reference to the original pleading of appellants it will appear that they asked that “the estate be distributed to them as tenants in common after the payment of any debts which may be due by said estate.” It is true that the time had not arrived for final distribution of the estate, as suggested by the majority,-but the estate and all the parties interested therein were before the court, except the creditors, if there were any. They were protected under the prayer, which requested that distribution be made subject to the claims of creditors against the estate. While the parties, by agreement, could not confer jurisdiction upon a court where it had no jurisdiction, the subject-matter involved here was a matter over which the probate court had exclusive jurisdiction, .and, the parties being before it, it seems to me that they might waive the time and thereby empower the court to adjudicate the matter at the time instead of later. The parties treated the suit as one for distribution, and having waived the time therefor, which prejudiced no one, it was, in my opinion, the duty of the probate court to distribute the estate, subject to the indebtedness, if any, to the parties entitled thereto. The result of the opinion of the majority is to require the parties to again litigate in the same court the same issues involved in the record now' before this court on appeal. This is an unnecessary burden to place upon the parties when they, themselves have not raised the question that the application for distribution was premature.
¶2I agree with the majority that the burden rested upon appellee to prove that she was the daughter of the deceased, and that the circuit court erred in placing the burden on appellant, and that on this account the case should be reversed. I cannot agree with the majority in directing a dismissal of the proceedings. I think the' judgment should have been reversed, and the cause remanded for further proceedings. Therefore-, I dissent from the majority in directing a dismissal of the case.