The merits of the controversy could not be determined in the probate proceedings. Williams v. Pollard, 101 Colo. 262, 72 P.2d 476; Hoff v. Armbruster, et al., 122 Colo. 563, 226 P.2d 312. Brothe v. Zaiss, 116 Colo. 472, 183 P.2d 561, upon which counsel for Peter rely, involved an antenuptial agreement entered into by the deceased and his wife, and the question was whether said antenuptial agreement prevented the surviving wife as the sole surviving heir from receiving the assets of the estate. In the instant action no contract entered into by the deceased Vito Gentile is involved. It is not necessary however to distinguish the case at bar from Brothe v. Zaiss, supra, as the doctrine of that case, even assuming no distinguishing factual matters has been expressly overruled.