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-ON PETITION FOR REHEARING-

SHRIVER, Judge by Designation.

Appellant, Williams-Henson Lutheran Home for Children, Inc., has filed a Petition to Rehear the Opinion and Judgment of this Court heretofore filed in this cause.

It is asserted in the Petition to Rehear that, while appellant does not dispute the principle of law stated in this Court’s Opinion to the effect that the Trial Court’s action in refusing to render a declaratory judgment would not be disturbed on appeal unless such refusal was arbitrary that, nevertheless, our statement was erroneous because the Trial Court did not refuse to make a declaration.

This appellant, The Children’s Home, as was pointed out in our Opinion, was made a party defendant to the will contest by a Second Amended Complaint and actively participated in the trial as defendant and counter-complainant, being the sole beneficiary under the purported will of Robert M. Love.

The result of that contest was a determination, which became final on appeal, that the will was invalid for lack of testimentary capacity of Robert M. Love, the testator.

*58The only holding expressly made by the Chancellor concerning the Children’s Home is as follows: “The counterclaim of the Children’s Home is dismissed for lack of evidence.”

We considered this simple statement of dismissal for lack of evidence to be far short of a response to counterclaimants’ prayer for a declaration of the rights and duties of the parties relative to the estate of Robert M. Love.

The sole claim of this party, The Children’s Home, to any interest in the Love estate is its alleged rights under the will. Those rights were extinguished when the will was finally held to be invalid. Thus, we take it that the Chancellor was correct in simply holding that there was no evidence to support the claim.

Thus, whether the simple statement dismissing the claim be considered a response to the prayer for a declaratory judgment or not is immaterial to the disposition of appellants’ claim.

We therefore concur in the Chancellor’s finding that there is no evidence in the record to sustain this appellant’s claim to any interest in the Love estate.

The Petition to Rehear is denied.

GODDARD and FRANKS, JJ., concur.

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