¶1On Petition eor Rehearing.
¶2[Decided May 17, 1913.]
¶3After the filing of our opinion in this case, respondent filed a petition asking that our judgment be modified. We held that appellant was entitled, as a matter of right, to administer upon the estate of his deceased wife, and that such right could not be abridged or taken away upon the showing made before the lower court. We are now asked to modify our judgment so that it will be a judgment for costs only “for the reason that at the time judgment was rendered by this court in this cause, the question in dispute between appellant and respondent had been settled and the controversy between them had ceased.” It is then shown *679by affidavit, and by a certified copy of Ms waiver, that appellant had theretofore waived Ms right to administer in favor of respondent.
¶4It is of no concern to this court who administers on the estate of Annie Buchser, deceased. We passed upon the question that was before us. If appellant desires to waive his right, he may do so, but his waiver must be made in the superior court. It was the duty of counsel to call our attention to the fact that the case had been settled, at the time it was settled. An order remanding the case would have been entered. Having imposed the burden of deciding the case upon this court, respondent may seek her rights under the waiver, if any she has, in the court below.
¶5Petition denied.