Petitioner does not point to any statutory provision that requires a showing of exclusive possession. However, petitioner cites Hoff v. Armbruster, 122 Colo. 563, 226 P.2d 312 (1950), which held: In this cause the evidence clearly shows that the will, probate of which is sought, was last seen in the exclusive possession and control of decedent.

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.

If there is a valid contract upon the parties here rely, their rights thereunder cannot be determined or enforced by proceedings to construe the last will and testament of the obligor. In re William's Estate, 101 Colo. 262, 72 P.2d 476; Hoff v. Armbruster, 122 Colo. 563, 226 P.2d 312. the foregoing are precedents involving reciprocal wills, but the principle of law therein announced is no different for the case now under consideration. In such circumstances, recourse may be had to the usual remedies available to any party who claims to be damaged by nonperformance or who seeks to enforce an alleged agreement.

Such rights may only be asserted and determined in proper proceedings before a proper tribunal. 57 Am. Jur., 178, § 203; Oles v. Wilson, Executor, et al., 57 Colo. 246, 141 Pac. 489; Hoff v. Armbruster, et al., 122 Colo. 563, 226 P.2d 312; Hoff v. Armbruster, 125 Colo. 324, 244 P.2d 1069. These matters, although wholly outside the issues involved in a will contest, were repeatedly presented to the jury through pleadings, opening statements, offers of proof, and arguments, thus seeking to convey to the jury the impression that Paige was an ingrate who sought to avoid her binding contract by making a will which it is pled:

THE controversy giving rise to this action has been before this court on three former occasions. A complete understanding of details not specifically mentioned in this opinion can be had by reference to the opinions heretofore announced, namely: Hoff v. Armbruster, 122 Colo. 563, 226 P.2d 312; Hoff v. Armbruster, 125 Colo. 198, 242 P.2d 604; and Hoff v. Armbruster, 125 Colo. 324, 244 P.2d 1069. In order to clarify the issues in the instant case, we include the following pertinent facts as established in the previous litigation.

A full statement of the facts will be found in those opinions and no good purpose would be served by repeating them here. It is sufficient to refer to Hoff v. Armbruster, 122 Colo. 563, 226 P.2d 312, and Hoff v. Armbruster, decided February 11, 1952, 125 Colo. 198, 242 P.2d 604. In the instant case all nonresident defendants were served by publication of summons and by mail as provided by Rule 4 (g), (2) (h) R.C.P. Colo.

Hence a court of probate cannot admit a mutual will to probate where it has been revoked by the testator; nor can he enforce an agreement to make a mutual will by ordering probate of that will where it has been revoked by the testator in violation of the agreement. Hoff v. Armbruster, 1950, 122 Colo. 563, 226 P.2d 312; 97 C.J.S. Wills § 1367, p. 311. The rationale behind this rule, expressed by the cited authorities and the Keith v. Culp decision, supra, is that it is the contract and not the will that is irrevocable.