
    John J. Cowden vs. Thomas L. Dobyns et uxor.
    
    The first probate of a, will by the probate court, is a mere incipient step, neces-saiy to enable the court to adopt the means to carry it into execution, but it is not conclusive on heirs and distributees, and may be opened, if necessary, and set aside.
    J. C. died in 1S32, and in the same year a paper, claimed to be his will, was duly probated, and letters testamentary granted to A. H., his widow ; J. J. C., the son of J. C., was a minor when J. C.’s alleged will was probated, but his guardian at the time appeared and contested it in his behalf; in 1843, within three years after J. C. became of age, he filed a petition in the probate court, that had probated the will, denying the validity of the alleged will, and praying for an issue devimvit bel non : Held, that the object of the petition, to obtain a reprobate of the will was a legitimate and legal one, and the mode pursued for that end the correct one. .
    In the absence of statutory directions, the modes of procedure adopted by the ecclesiastical courts of England are necessarily in force in our probate courts.
    A bill of review will not lie in the probate courts.
    On appeal, from the probate court of Jefferson county.
    John J. Cowden filed a petition in the probate court of Jefferson county, státing that James Cowden died on the 23d day of January, 1832, and on the 4th Monday of January, of the same year, administration was granted to his widow, Ann H. Cowden, who was now deceased; that at the April term, 1832, of ■the court, a will was produced and probated by the court, and letters testamentary granted thereon, to Mrs. Cowden, named executrix therein ; that petitioner was the only child and heir of James Cowden, and at the time of'his decease was a minor ; that the alleged will gives one third of the estate to his widow and the residue to be divided between the petitioner, William Yirginius, his half brother, son of testator by Mrs. Ann H. Cow-den, and Columbia E. Simpson, now wife of Thomas L. Dobyns, and daughter of testator’s then wife by a former husband ; that William Virginius died in the life-time of the testator, and Co-himbia E. Simpson has married Thomas L. Dobyns; that the petitioner was the son of the testator by his first wife; the petitioner denies that the instrument claimed to be the will of James Cowden was intended by him as such, as was apparent from the face of it and the contents; and that it was improperly and unlawfully admitted to probate; that the petitioner had arrived at maturity within three years from the period of filing his petition. The petition prays that the probate may beset aside, and an issue devisavit vel non awarded; upon which citation issued. Thomas L. Dobyns and his wife answered the petition ; they admitted that an instrument was probated as the will of James Cowden, at the April term, 1832, of the Jefferson probate court, and aver that it was lawfully proved before that court, •when so probated. They admit that the petitioner was the only child of James Cowden at the time of his death, that Mrs. Dobyns is the daughter of the testator’s widow, and was the wife of Dobyns ;'they aver that the instrument, so admitted to probate, was the last will of James Cowden, and having been duly admitted to probate, cannot now be questioned ; and insist on the judgment and decree of the probate court on the subject, as conclusive and final, and make it a part of their answer. They demur to the prayer of the bill and the relief sought, because it was not sought by bill of review, within such time as it should have been.
    The proceedings before the probate court, on the prohate of the will, are not noticed here more at length, because not forming part of the opinion of the court; they showed that the will was duly executed, was attested by two witnesses, and was altogether in the hand-writing of the testator; there was also some words attached to the foot of the will which seemed to indicate an intention to revoke, if not a revocation of it. The record showed that A. E. Bradford, guardian of John J. Cow-den, the petitioner, objected to the admission of the will to probate, contested it at the time in the probate court, and on argument of counsel, the will was duly admitted to record ; and letters testamentary granted to the executrix named therein.
    The court below sustained the demurrer contained in the answer of Dobyns and wife, and dismissed the petition; from which decree this appeal was prayed and prosecuted.
    
      G. Winchester, for appellants.
    The grounds of the demurrer in this case were :
    1st. That the allegations contained in the petition, if true, would not entitle the petitioner to the relief sought by the petition.
    2d. That the relief is not sought by bill of review within the time required, and is' barred by the statute of limitations.
    John James Cowden, the only son and heir of James Cow-den, who died in January, 1832, seeks to try the validity of an instrument in writing, admitted to probate as the last will and ■testament of his father, in the probate court of Jefferson county, by which he is deprived of half the real estate, and one sixth of the personal estate of his father.
    The instrument was probated when he was a minor, and his petition was filed within three years after he arrived at twenty-one years of age.
    Has he a right to contest the probate, by an issue of devisa-vit vel non under the statute, or otherwise, upon petition to the probate court ?
    Was this decree of the probate court a final and conclusive decree or sentence, by which the title to one half of the real, and one sixth of the personal inheritance to which he would otherwise be entitled, has become vested in the wife of Thomas L. Dobyns?
    If not final and conclusive, by what remedy may he avoid or contest the sentence ?
    1st. By the laws of the state, existing at the time the decree was made, it was not final and conclusive ; nor has anything occurred since, by which, under and by force of any law, it has now become final and conclusive.
    2d. The probate not being final and conclusive upon peti-. tioner at the time it was made, and not having become final and conclusive since, by force of any law existing at the- time the probate was made, or of any law passed since, how is the petitioner to avoid it, if erroneous? In what court, and by what course of proceeding is the petitioner to contest the probate of this instrument?
    The statute directed it to be done by a bill in chancery for an issue of devisavit vel non, to be directed to be tried before a jury in the circuit court.
    But in a cause so commenced and tried, and brought by appeal into this court, this court decided that under the new constitution, the jurisdiction upon this statute was taken from the chancery court, and vested exclusively in the probate court. This petition has been brought in the probate court, in conformity to the decision of this court.
    The questions, presented by the decision of the court below, sustaining the demurrer and dismissing'the petition, are
    1st. Is not the legal heir, entitled to his remedy in the probate court, to have an issue devisavit vel non directed to try the validity of the will under the statute?
    2d. Is that remedy properly by petition, or should it be by bill of review ?
    3d. Is the remedy barred by any statute of limitations?
    As to the first point, it has been already finally decided in the case of Cowden v. Cowden, and in obedience to that decision the heir has resorted to the probate court.
    By that decision, the heir was refused his remedy under the statute, expressly upon the ground that jurisdiction had been given by the constitution to the probate court exclusively.
    This decision is conclusive on the parties, both that the jurisdiction is not in a court of equity, and that it belongs to the court of probate; or if that decision can now be reversed, then the former decree, dismissing the bill for want of jurisdiction in the court of chancery, must be set aside and that cause permitted to be reinstated.
    2d. Is petition the proper remedy for applying for an issue devisavit vel nonl No other mode of proceeding, but by petition or motion, is known to the court of probate.
    In the case of Cowden v. Cowden, 2 How. R. 806, a bill was filed under the statute, praying an issue devisavit vel non, which was directed, the issue tried, an application for new trial made, and overruled by the chancellor, and an appeal thereon taken to the high court of errors and appeals.
    The case is not sufficiently stated by the reporter, or by the judge who delivered the opinion. But it was a bill filed for an issue devisavit vel non, and the appeal was upon the refusal of the chancellor to grant a new trial, as appears by the record- of the case in this court.
    The court dismissed the original bill, upon the single ground that under the new constitution, the jurisdiction to direct an issue devisavit vel non, under the statute, was taken away from the chancery court, and vested' exclusively in the court of . probate.
    • The sole heir at law, who was then an infant, and has arrived at the age of twenty-one within three years, has now filed his petition to the probate court of Jefferson county, in which the jurisdiction is exclusively vested, as decided in the former suit, for an issue devisavit vel non.
    
    His petition is demurred to,
    1st. Because the allegations do not entitle petitioner to the relief.
    2d. Because it is not sought by bill of review within the time-required, and is barred by the statute of limitations.
    3d. Is the heir’s remedy by an issue devisavit vel 7ion barred by any statute 1
    
    By the statute, the probate of a will .in the probate court is not conclusive. But any heir or person interested is allowed to contest the will by an issue of devisavit vel non in the circuit court, directed out of chancery, and ndw by the change of jurisdiction effected by the new constitution, directed out of the probate court, within five years after arriving at the age of twenty-one.
    The heir here has applied within three years after arriving at the age of twenty-one.
    
      Montgomery and Boyd, for appellees.
    It is conceived there is but one point in this case ; and that is, how far the judgment of the probate court of Jefferson county concludes the parties thereto under all the circumstances'?
    The facts are few, and not controverted, viz. An instrument was presented for probate as the will of James Cowden; the petitioner, by his guardian, who was the heir of Cowden, appeared and contested the will, and on proofs and arguments of counsel, it was adjudged to be the will of Cowden. Three years after petitioner became of age, he -filed this petition, making one of the devisees, who was sole heir of the other devisee, a party, and prays an issue of devisavit vel non.
    
    We insist that the proceedings in the first instance, establishing this will were conclusive, unless reversed on appeal, or set aside by the same court, under a regular practice ; and that an original petition for an issue devisavit vel non will not lie. The only statute which authorizes the probate court to direct an issue of any description to the circuit court, is in How. & Hulch. 472, s. 17, 18. And that statute clearly applies to original proceedings.
    The statute which authorizes an original bill in the chancery court within five years after a minor heir arrives at maturity, cannot be extended to the probate court. H. & H. 389, s. 17. And so far as jurisdiction is conferred on the chancery court, this court has repeatedly decided it unconstitutional. Cowden v. Cowden, 2 How. R. 806; Hamberlin v. Terry, 7 lb. 147.
    Has the probate court jurisdiction to entertain an original petition and give the relief sought? As this matter has been once litigated between the same parties, we insist it is conclusive, unless reversed by a higher tribunal, or set aside by the same court, according to the regular practice of the court. This petition does not seek to review the former decree, nor to attack it in any manner, save collaterally as it becomes a part of this case in the answer and proof. The petition in truth, treats the former probate of the will as a nullity.
    We consider the decrees of the probate court final until reversed. 1 How. R. 450.
    We do not deny that the petitioner could have been permitted to contest the former probate of the will by a bill of review, or when he became of age he could have been allowed, on petition, to come in and answer the petition originally filed by the executrix, praying the establishment of the will, and the proceedings should have been set aside, on his answer, in analogy to the practice in chancery in similar cases against infants. Scott v. Calvit, 3 How. R. 155.
    The case of Hodges v. Banckman, 8 Yerger’s R. 186, cited in the above, is a strong case in favor of the conclusiveness of the probate of the will according to the requisitions of the statute, and in that case the petitioners were minors, and minors had an opportunity by themselves or guardians to contest the will.
    We do not deem it necessary to multiply cases, as to the question of the conclusiveness of the decree which is relied on as the answer, but will refer to some decisions of this court. 1 How. R. 450; 2 lb. 856; 3 lb.. 252; 7 lb. 199; 1 Yes. sen. 283.
    The sections of the statutes which regulate the jurisdiction of the probate court, will be found as follows :
    The orphans’ court of each county shall have power to examine and take proof of wills. H..& H. 388.
    Applications for letters testamentary, &c., may be made in vacation, and notice must be given to those interested, if in the state; but letters &c., may be granted, and wills proved when no such application has been made. H. & H. 399, s. 50.
    The statutes which applied to the orphans’ court, extended to the probate court. H. & H. 470, s. 12.
    And an appeal was secured. H. & H. 473, s. 20; lb. 418, s. 112.
   Mr. Justice ThacheR,

delivered the opinion of the court.

This was an appeal from the judgment of the probate court of Jefferson county.

At the January term, 1843, John J. Cowden filed his original petition in said probate court, setting forth that James Cowden died in January, 1832, and that at the April term of that year of said court, an instrument, claimed to be'his will, was proved and probated, and letters testamentary granted to Ann H., the widow of said James, rvho is also since deceased. This will disposed of the property by giving one third of the estate to the widow, and by dividing the other two thirds equally between the petitioner, who was a son of the testator by a first marriage, and William Yirginius, petitioner’s half brother, who died before his father, and Columbia E. Simpson, since intermarried with the appellee, Dobyns, and who was the daughter of said widow by a former husband. The petition sets forth that the petitioner has arrived at majority within three years, denies that the instrument probated at the April term, 1832,. of the probate court of Jefferson county, was intended as a will, and prays an issue thereon devisavit vel non. It also appears by the record, that at the time of the probate of the instrument in question, the guardian of the petitioner appeared and contested it in his behalf. To the petition a demurrer to the prayer and relief sought was filed and sustained by the court below.

The statutory provision which existed prior to the present constitution, «and which authorized any party interested, within a given time, to file his bill in chancery to set aside a will, has been declared by this court to be virtually repealed by the constitution. But the case of Cowden v. Cowden, 2 How. 806, determines that the subject-matter of this- bill is within the jurisdiction of the probate court. The same point was decided also in the case of Hamberlin et al. v. Terry's Ex'r. et al. 7 How. 143. This court then said, that “whilst the administration is there pending, the executor is always subject to the jurisdiction of the probate court. He may be superseded at any time, for good cause shown, and that court may inquire into the validity of a will, at the suggestion of any party interested, The first probate is a mere incipient step necessary to enable the court to adopt the means to carry it into execution, but it is not conclusive on heirs and distributees, and may be opened, and if necessary, 'set aside. If it be necessary to direct an issue devisavit vel non, that court has power, and can exercise it, by sending the case to the circuit court.” This court has furthermore decided at this term, in the case of Harris, Wright & Co. v. Jesse S. Brown's Adm’rs., that a bill of review does not lie in the probate court. The petition in the case now under consideration is manifestly designed to obtain a re-probate of the will, and pursues the method known to the ecclesiastical courts of England, which, in the absence here of statutory proceedings, is necessarily in force in our probate courts.

The judgment of the court below is therefore reversed, the demurrer directed to be overruled, and the cause remanded for further proceedings.  