note pn p. 99 vol. 18 L. R. A. (N. S.); Apperson v. Cottrell, 3 Port (Ala.) 51; 29 Am. Dec. 239; Lang's Est. 65 Cal. 19; 2 Pac. 491; Re Johnson, 40 Conn. 587; Forbing v. Weber, 99 Ind. 588; Allison v. Allison, 7 Dana. 90; Rich v. Gilkey, 73 Me. 595; Rhodes v. Vinson, 9 Gill. I69; 52 Am. Dec. 685; Schaff v. Peters, 11 Mo. App. 447; 90 S. W. 1037; Idley v. Bowen, II Wend, 227; Delafield v. Parish, 25 N. Y. 9; Smith v. Waite, 4 Barb. 28; Re Forman, 54 Barb. 274; Re Waldron, 44 N. Y. Sup. 353; Ford v. Ford, 7 Hump. 92; McIntosh v. Moore, 22 Tex. Civ. Ap. 22; 53 S. W. 611.
The doctrine of res adjudicata is that "a judgment as to all matters decided thereby and as to all matters necessarily involved in the litigation relating thereto binds and estops all the parties thereto and their privies in all cases where the same matters are again brought in question. See Moore v. City of Albany, 98 N. Y. 396-410.
ROBINSON, C. J. This is an appeal from an order overruling a demurrer to a petition for the probate of an alleged will of William J. Morgridge. The will is dated September 19, 1916. A subsequent will, dated November 23, 1917, was held void for want of mental capacity. Prescott v. Merrick, 179 N. W. 693. The will in question was destroyed by the parties who secured the will that was held void.
The case above cited shows that in December 1915, Morgridge suffered a stroke of paralysis from the effects of which he never recovered. After that he lived in the General Hospital at Devils Lake. The deceased left property valued at approximately $80,000o. The will provides for bequests as follows: $100 to Delia F. Morgridge, of Boston, Mass., a sister of deceased; to a nephew, Ralph Waldo Prescott, $10,000; to one Clara Allen, of Boston, $100; to Stella Merrick, of Oregon, wife of F. E. Merrick, his former business partner, $5,000; to Ruth Canfield, of Oregon City, Or., daughter of F. E. and Stella Merrick, $1,000; to Walter D. and Emerson P. Merrick, sons of F. E. and Stella Merrick, of Medford, Or., $1,000 each. The balance of the property was devised to the above-named persons in proportion to the amounts bequeathed in the will.
The will now in question bears the same general character as the other will. It leaves the bulk of the property to Merrick and his family though the Merricks are no relations of the testator.
The petition for probate is signed and sworn to by Fred E. Merrick. He avers that on the 23d day of November, 1917, the testator made a will,
