
    Wynne Ex'r. vs. Spiers.
    1. After a will has been proved, no stranger, or kinsman whois not next of kin* north© next of kin, who has been duly cited to witness the probate, shall be permitted to disturb such probate.
    2. When the County Court sets aside the probate of a will, and orders an issue to he made up to test the validity of the instrument, an appeal lies from such an order; such an order comes within the provisions of the act of Assembly, which allows an appeal to the Superior Court to either party, plaintiff or defendant, when dissatisfied with the sentence, judgment or decree of the County Court.
    3. When a suit for a divorce, and to secure a separate estate was compromised by the husband and trustees of the wife, and a given sum settled on the wife absolutely, with a right to dispose of it by will, and such compromise was made the decree of the court after the death of the wife, by the husband and executor of the will: It is held, that such decree was an estoppel of the husband's right to resist the probate of her will.
    Elizabeth Prince, in contemplation of marriage, executed to Charles Spiers a deed, conveying to him, for her sole use and benefit, some twenty thousand dollars worth of property, real and personal.
    They were married afterwards, to wit, on the 23d day of January, 1841.
    On the 22d day of July, 1844, she filed her bill in the Chancery Court, at Gallatin, against said Spiers. This bill prayed a divorce, alledging impotency, harsh treatment and intolerable indignities. It also prayed, that Spiers be divested of all title to the property conveyed to him as trustee, and that it be vested in her absolutely.
    On the 7th day of May, 1844, Mrs. Spiers made a will, in which she bequeated to her mother, M. Odarn, all her estate, real and personal, vested in Charles Spiers as her trustee.
    On the 3d day of August, 1844, the bill of Mrs. Spiers still pending, a deed of compromise was executed* by the terms of which Charles Spiers released to Wynne and Odom as trustees for Elizabeth Spiers all the title he had to the real estate conveyed to him by the marriage settlement, and agreed to pay to them also for her benefit the sum of $8,000; and said Elizabeth, in consideration of these provisions, released to said Spiers- all her equitable interest under the said articles. It was also provided, that said Elizabeth should have the absolute right to dispose of her estate by will or otherwise. It was agreed, that a decree should be entered in the pending suit in conformity with the terms of the deed of compromise.
    Mrs. Spiers died — the will was proven, and Wynne, the executor, took upon himself the management of the estate. The suit in Chancery was revived in the name of the executor, and a decree entered in conformity with the stipulations of the deed of compromise.
    In June, 1845, Spiers made a motion in the County Court of Sumner to set aside the probate of the will of Elizabeth Spiers. The court ordered, that the probate be set aside, and that “the alledged will be sent up to the Circuit Court with a transcript of this order; that an issue be made up to test the validity of the same.”
    At the May term, 1846, the court, Thomas Maney, Judge, presiding, upon the application of Spiers, ordered a citation to issue to Wynne, executor, “to come forward and show cause why the probate of said will should not be contested.”
    This summons was served, and Wynne came forward and pleaded the following plea, to wit:
    “And the said defendant, by his attorney, comes and defends the-citation issued against him in this case, and says, that the said Charles Spiers is not entitled, and has no right to have a re-probate of will of the said Elizabeth O. Spiers, and to contest the same; because he says, that by a certain article of agreement between the said Charles Spiers of the one part, and the said Elizabeth O. Spiers, and Alfred R. Wynne and Eli Odom of the other part, sealed with the seals of the said Charles Spiers, Elizabeth O. Spiers, Alfred R. Wynne and Eli Odom, dated the 3d of August, 1844, a certified copy of which, properly proved and registered, this defendant brings here now in court. The said Charles Spiers did convey, remise and release to the said Alfred R. Wynne and Eli Odom, as trustees, &c., free from all claim or demand whatever of him the said Charles Spiers, his heirs, executors, administrators and assigns forever, all claim, title and interest to the estate, both real and personal, devised by the said Elizabeth O. Spiers by her will, bearing date the 7th May, 1844, which is likewise shown to the court; and that the said Charles Spiers has no interest whatever in said property devised by the will of the said Elizabeth O. Spiers, and that the said Charles Spiershas no right in law to contest the validity of said will, or to call for are-probate of the same, all of which he is ready to verify by the deed; wherefore he prays judgment, &c. And, further pleas in this behalf, the defendant says, the said Charles Spiers is not entitled to call for a re-probate of said will, and to contest the validity of the same, because he says, that a bill in equity has been filed by the said Elizabeth O. Spiers against the said Charles Spiers and one Samuel M. Blythe, in the Chancery Court of Sumner, on the 22d of July, 1844, and which said bill or suit in equity was continued and undetermined in said court, until after the death of the said Elizabeth O. Spiers; and that on the 16th of Ociobei', 1844, the death of the said Elizabeth O. was suggested, and the cause revived by consent against this defendant, Alfred R. Wynne, as executor of the said Elizabeth O. Spiers, and a final decree was rendered in said cause between the said parties on the said 16th of October, 1844, by which said decree the compromise and adjustment of the right of the parties, which had been made between them, was made the decree of the-court by consént of the parties, and from which it appeared, that the said Charles Spiers did convey, remise and release to the said Alfred R. Wynne and Eli Odom, as trustees, &c., free from all claim or demand whatsoever of him the said Charles Spiers, his heirs, executors, administrators and assigns forever, all claim, title and interest to the estate, both real and personal, devised by the said Elizabeth O. Spiers by her said will, bearing date the 7th May, 1844; and which decree is still remaining in full force and effect, not in the least revised, satisfied or made void, a certified copy of the record in said cause is now shown to the court. And the said defendant says, that the said Charles Spiers cannot, therefore, now claim any interest whatever under the will of the said Elizabeth Q., or in opposition to the same, or any interest whatever in any of the property bequeathed by the will of the said Elizabeth O., and that the said Charles Spiers can set up no interest to any portion of the property bequeathed by the will of the said Eliza-belli O., and that the said Charles Spiers is estopped by said decree from contesting the validity of the will of the said Elizabeth O.; and that this defendant is executor to said will and has qualified upon the same, and the said Charles Spiers cannot now call for a re-probate of said will, or contest its validity; all which he is ready to verify by the record. Wherefore he prays judgment, &c.; and for further pleas in this behalf, the said defendant says, that the said Charles Spiers is not entitled to call for a re-probate of said will, and to contest the validity of the same, because he says, that the said Charles Spiers is not the next of kin to the said Elizabeth O. Spiers, deceased, nor has he ever taken out letters of administration upon the estate of the said Elizabeth O. Spiers, and cannot, therefore, set up any claim to the estate of the said Elizabeth O., nor in any manner contest the will of the said Elizabeth O. Spiers, or call for a re-probate of the same. All which he is ready 'to verify. Wherefore he prays judgment, &c.”
    The court refused to quash the order of the County Court, setting aside the probate, but directed an issue of devisavit vel non to be made up to test the validity of the ■vyill.
    From this order of the Circuit Court, the defendant, Wynne, appealed.
    
      John J. White, for the plaintiff in error, said-
    — The first question is, is this such a final judgment in the case, that an appeal in error can be prosecuted upon it? What is the question here? It is one between Charles Spiers, on the one side, and the executor of the will, upon the other, whether Spiers is entitled to a re-probate of the will and an issue upon it. The action of the Circuit Court, as well as that of the County Court, was final upon that question, which is the only matter in issue between the parties. This is wholly different from a case that might arise between these parties upon an issue investigating the validity of the will, and where the court would not examine any interlocutory proceeding upon that issue, until a final judgment in the case.
    The mischiefs that would result from the doctrine, that a man may at pleasure, from wantonness, or malice, or with a view of extorting money upon a compromise, without the pre-tence of right, demand and obtain an issue upon the will of any deceased man, against the wishes and interests of all the legatees under a will, keep it in law for years at an expense, it may be, of thousands to the estate, and that there is no remedy until after that issue is tried, are too obvious to be dwelt upon.
    It cannot be denied, that we had a right to appeal from the decision of the County Court under the act of 1794, ch. 1, sec. 63; N. & C. 91. And the act of 1844, Statute Laws of Nicholson, p. 11, has gone greatly beyond that act, for it authorizes an appeal from any decree or decision of the County Court. And it would be contrary to all our legislation upon the subject of appeals, to suppose that it was intended to give a party an appeal from the County to the Circuit Court upon a given state of facts, but no appeal further.
    It is true the act of 1811, ch. 72, sec. 11, N. & C., 93, speaks of suits and of final judgments in the cause, upon which an appeal in error may be prosecuted. But the fallacy of the argument on the other side is, in not regarding this as a suit, which it is about the re-probate of the will, and the right to an issue, upon it. All the facts upon which the party relies for a reprobate should be stated in his petition, to which the party opposed to it may plead, answer, or demur, and upon which proof may be taken.
    An additional argument may be drawn from the act of 1836, sec. 9, N. & C. 710, which says that where a will is offered for probate and the same is contested, it shall be the duty of the County Court to certify the fact, and send up the original will to the Circuit Court for an issue. No question then under this act, could properly be connected between the application for the reprobate of a will which must be tried in the County Court, and the issue upon that will which can only be tried in the Circuit Court.
    In North Carolina under their act of 1777, which is similar to our statute of 1794, ch. 1, sec. 63, it has been decided that an appeal will lie from the judgment of the Court ordering the reprobate of a will. See 1 Dev. & Batt., Law Reports, 190-482.
    
      But 2d. It is the parties in interest alone that are to be cited upon the probate of a will — consequently, it is they alone who can contest a will or call for its reprobate. See 1. Williams on Ex’rs, 192-358. How does this matter stand in regard to Spiers? Not to dwell upon the compromise of the 3d of August, 1844, merely as a deed, which if it stood alone would be a good defence. — Can there be a doubt that he is estopped by the decree, which was made on the 16th of October, 1844, from contesting the validity of the will, or calling for a reprobate, or setting up any claim to the separate estate of his wife, or questioning that Wynne is the rightful Executor to the will?
    Let us understand this matter. On the 22d of July 1844, a bill was filed by Mrs. Spiers for a divorce from Charles Spiers and for a decree vesting in her an absolute estate in the entire fund and in all her effects both real and personal in his hands as trustee under the marriage articles between them of the 23d of January, 1840. After this, Mrs. Spiers’ death takes place, the cause is revived by consent in the name of her Executor, Alfred R. Wynne, who had qualified upon her will, and a final decree is rendered in his favor as Executor, on the 16th of October 1844, and the deed of compromise of the 3d of August, 1844, made the decree of the Court. The decree then sets out the compromise — recites the marriage articles of the 23d of January 1840, by which Mrs. Spiers conveyed to her husband Charles Spiers, her whole estate, both real and personal, amounting to $20,000, but for her sole use and benefit — speaks of the bill in Equity filed by her on the 22d of July 1844, against him for a divorce and to get possession of the fund.
    It then settles the rights of the parties as it regards the property contained in the marriage articles which was the subject of the suit — conveys to her Trustees for her $8,000 of the fund and the real estate, “free from all claim or demand whatever of him the said Charles Spiers, his heirs, executors, administrators or assigns forever.” This then is declared to be for her sole use and benefit — and if she obtains a divorce from him, or in the event of his death, the trust is to cease and she is to hold the same absolutely in her own right — and the Trustees agree to manage the fund and real estate for her and according to her directions. And in consideration of this she releases all claim against him as Trustee, and likewise to the balance of the property mentioned in the marriage articles of the 23d of January 1840 — and likewise to dower in his real estate or to any portion of his personal estate, if she should survive him — and he is not to be responsible’for her future debts or maintenance.
    It is evident that the true construction of the decree and compromise, is not to exclude the rights of the husband during coverture merely, but absolutely arid forever, and that he cannot now set up any claim to the balance of the fund devised by the will of Elizabeth O. Spiers, and which recites alone this identical fund specified in the compromise. See 7 John, ch. rep., 245, Stewart vs. Stewart: Hamrico vs. Laird, 10 Yer. 222; 6 Hump., 127.
    But then again, here-is the recognition after her death upon the record, of the release, and of her will, and of the executor to the will, and that the executor is entitled to the fund to pass according to her will, in a case to which Spiers is a party on the one side and the Executor on the other, where the contest is in regard to this very fund, which beyond all question, as we think, operates as an estoppel. See 2 Starkie on Ev. 17-313— 1 do. 217 — Duchess of Kingston’s case, 11 St. Tr., 261 — 4 Com. Dig. 195, Co. L. 352, A.
    
      Trousdale and Barry, for the complainants in error.
    
      Baldridge, for the defendant in error.
    The appeal in this case being from an interlocutory judgment of the Circuit Court, will not be entertained by this Court. Our act of assembly only authorises appeals from a final judgment of the Circuit Court. See act of 1811, ch. 72, sec. 11, N. & C., page 93. The language of this act is “where either party in any suit which may be depending in any of the Circuit Courts shall be dissatisfied with the judgment of such court or shall be of -opinion that there is error in the record of the proceedings in such suit, such party, may at the term, at which final judgment is rendered in said cause, pray an ap.-peal in the nature of a writ of error, to the Supreme Court, which appeal the said courts are hereby required to grant.”
    And the Supreme Court so determined before the passage of this act of assembly, in several cases, among others, in Joslin vs. SapiAngton, decided, in 1S06, sec. 1st, Tennessee Rep. 222, 3. This case went up from the judgment of the Circuit Court, sustaining demurrer to a plea in abatement; in which the court decided, that inasmuch as the judgment of the court below was against the plea, it was therefore an interlocutory judgment from which no appeal would lie to this court. And in the case of Carrol et ah vs. Caldwell et als decided in 1827— see Martin & Yer. 78. This cause went up from a judgment of the court below, granting a new trial, after verdict. Upon which the court say that the motion to dismiss must be sustained, because “there was no final judgment in the cause nor could there be, after the new trial was awarded, until another trial could be bad in the court below.” So in the case now before the court. > The Circuit Court decided that Dr. Spiers had the right to call in the probate in common form, and have a probate y>er testes, and directed an issue. This cannot be called a final judgment, with propriety, any more, than the judgment against'the plea in abatement; or the judgment granting a new trial above quoted. It was merely overruling the protests of plaintiff against repropounding the will. So in the first cases quoted, the judgment of the court was against the plea in abatement, which in other words determined the right of plaintiff, to proceed in his cause — just so in the present case —it was merely an interlocutory judgment from which we contend, the plaintiff had no right to appeal to this court.
    It is contended that Dr. Spiers is not entitled to call for a reprobate because of the' ante-nuptial contract, and of the contract in August, 1844; and the decree of the Chancery Court, confirming it after the death of his wife — and by which he recognized, as they say, the plaintiff as her executor &c. And finally they say he is not entitled to call for a reprobate, because he is not the next of kin to the deceased.
    These defences against a reprobate were urged by the counsel for the plaintiff unsuccessfully in the Circuit Court. The terms “next of kin” it is believed, when used in the books in connection with this subject are intended to mean the persons who would take the estate in case there were no will; thus we see the terms heirs used in the place of next of kin, meaning in both cases the persons who would inherit the estate, in cases of intestacy or heirs at law. And so the husband is frequently in the books, called next of kin to the deceased wife. At other times, it is said, that he is entitled to her estate according to law, by virtue of his own right, as husband, this was so determined by this court in the case of Hamico vs. Laird, 10th Yerger222, decided in 1836. Thus the husband is entitled to the personal property of the wife in exclusion of the next of-kin by blood. If then the wife dies, having previously taken it into her head to make a will by which the husband might be deprived of his rights to her property, although her bequests may be in favor of her next of kin by blood, who could be more interested, in .such case, than the husband; and who could have a better right to call for a reprobate according to law, of any such pretended will than the husband, who is entitled to the whole personal estate. The next of kin by blood could, in no instance, have a stronger or more extensive claim to her personal estate. Can any good reason then be given why the husband is not as much entitled to call for the reprobate of his wife’s will of personal property as the next of kin by blood or any other person whatever?
    But it is said that the husband has parted with his interest in this case by the agreements aforesaid. Now if this be so, it may prevent his recovery of the property and money, &c. When the “right of property is tried” and the claim of the husband may hereafter be defeated, by her next of kin by blood in a subsequent suit. But can we try the “right of property” here in a contest about the validity of the will? In the case of Gibson vs. Lane, 9Yer. 490, which sought for a reprobate, after eighteen years from the probate in cannon form. It was said that the statute of limitations would operate in favor of the holders of the property; and therefore the issue of devisavit vel non would do no good, &c. Upon which the court decided that such a state of the case could not alter the rule of law — and that “upon the trial of this issue the right of property cannot be called in question. And if the persons who were in possession are protected by the statute of limitations, the trial of the issue can do them no injury; but if they are not so protected, it is absolutely necessary that the contest relative to the will should be settled, for otherwise no suit could be brought against them.” So in this case. If it be true that Dr. Spiers has no interest in the property mentioned in said alledged will, (which we deny,) then the trial of the issue desired by us can do the plaintiff no injury. But if he has an interest, (which we expect to be able to shew,) it becomes absolutely necessary that the content about the will should be settled; for otherwise no suit can be brought against them. By this decision last quoted we deem this question settled, and therefore refrain from shewing at present that Dr. Spiers has an interest in, and right to, all the personal estate mentioned in said supposed will. Should this will, upon the trial of the issue be set aside, we expect to establish another paper as her last will and testament, which will be in accordance with the ante-nuptial contract, and not inconsistent with any subsequent agreement between the parties.
    But lastly, it is contended that Dr. Spiers is barred by reason of his having, in the revival of the chancery suit after the death of his wife, recognized plaintiff as executor, &c. We believe that there is nothing valid in this; and that he has not precluded himself from the right now sought by any act his counsel may have performed in the progress of that suit. By reference to standard authorities upon this subject, we find that this right remains “even though he has received a legacy as due to him under the will.” 1st Will, on Ex’r 193-4.
    “A strong instance of this occurs in the case of Core vs. Spencer, (decided in the Prerogative Court of Canterbury in 1796,) 1st Add. 374, where Spencer the ex’r was cited to bring in the probate of the will taken in 1788, (eight years before) at the suit of Core, whose mother had received an annuity under that will for five of the eight years, and she, (Core herself) her mother being dead, for the remaining three years. Spencer, the ex’r, in this case appeared under protest, and contended that Core was barred from putting him on proof of the will; but the court thought otherwise, and overruled the protest. 1st Will, on Ex’r 194.
    Is not this a much stronger case than the one before the court? Here are instances given where the parties in interest were declared not deprived of exercising their right to call for a probate in solemn form, though they had received a legacy under the will. And although annuities for eight successive years under the will had been paid, and received by the very persons calling for a re-probate. And yet the plaintiff here contends that Dr. Spiers is barred oi this right, because his counsel in the Chancery Court merely revived that cause in the name of the nominal Executor.
    The application of the defendant in this case is for an issue to try the validity of the paper purporting to be the last will of Elizabeth O. Spiers, and not the title to property; it appearing from the record (and not disputed by plaintiff,) that he is the husband. We contend that it is therefore his right in law to have this issue made and the validity of the paper tested.
    The protests of the executor, therefore, concerning defendant’s right to the property, ‘&c., and his alledged acts of relinquishment, &c., are considered out of place here, and wholly foreign to the issue to be tried. Because the right of property will not be enquired of upon the trial of this issue. Nor is it to be expected that the defendant'could be prepared to establish his right to- the property or any part of it, either whilst insisting upon his right to test the validity of the alledged will, or upon the trial of the issue of devisavit vel non. The contest about the will must be ended before the parties can be in a condition to litigate the question of the right of property.
    We ask now to be permitted to be present at the probate of the alledged will and to contest the validity thereof, when we expect upon a fair trial of the issue the verdict of the jury will be that it is not the will of said deceased. Then and not until then, can the right to the property be called in question between the proper parties and in the form of action best calculated to test such questions.
    
      Guild, for the defendant in errror.
   Reese, J.

delivered the opinion of the court.

The defendant, in Error, in January 1841, intermarried with the Testatrix of the plaintiff in Error, and entered into a marriage agreement with her, by which her separate property, amounting to about $20,000 was settled upon her for her sole and separate use. A petition for divorce, and to be revested with all her property, absolutely, was filed by the Testatrix in the Chancery Court for the County of Sumner, and pending said suit, a compromise between the parties, so far as related to the property of the wife, was entered into by the husband and certain Trustees on the part of the wife, by which the husband conveyed, of said trust property, about $8000 to the Trustees of the wife, and this in consideration of being permitted to remain absolute owner of the balance of said trust fund, and to be free from the debts of the wife, and from all liability to support and maintain the wife. In the meantime, the suit for a divorce was to be proceeded in by the Chancery Court of said county, and it was agreed by said parties in said deed of compromise that said deed, and all its stipulations, should be returned to the next term of the Chancery Court, and should become the decree of said Chancery Court, as to the rights of the parties in relation to said property.

Before said Chancery Court was held, the said Elizabeth O. Spiers departed this life, having first made and published her last will and testament, as she was expressly authorised to do by a stipulation of said deed of compromise. She appointed Alfred R. Wynne, the plaintiff in error, her executor, and he took upon himself the said office. When the Chancery Court was held in the October following, the death of Mrs.Spiers, was suggested in said case, and admitted, and by consent of parties, the same was revived against the said executor, and the said deed of compromise, by like consent formally set forth at length, and made the decree of the Court in the said suit. Subsequently to all these proceedings, the said Charles Spiers, the husband, filed his petition in the County Court; praying that the probate of said last will and testament might be set aside, and that the executor in said will might be compelled to repro-pound said instrument for probate, and that said original instrument should be certified to the Circuit Court, in order than an issue of devisavit vel non might be there made up between the parties, to try the validity of said instrument according to the course by law directed in such cases. The setting aside the probate, and the repropounding of the instrument, and the sending it up to the Circuit Court, were opposed by the executor, on the ground of the marriage settlement and the stipulations therein contained, on the ground of the deed of compromise of 1844, and on the ground of the revival of the suit, and the decree thereupon rendered pursuant to the said deed of compromise. The judgment or sentence of the County Court in the premises was, that the said probate should be set aside, that said instrument should be repropounded, and be certified to the Circuit Court for an issue of devisavit vel non to be there made up and tried. — From this judgment or sentence the executor prayed and prosecuted his appeal to the Circuit Court. In that Court, the Executor, upon the grounds stated in opposition to the action of the County Court, moved the Circuit Court to quash the proceedings of the. County Court and opposed a reprobate of the instrument, or the making up an issue for such purpose. — But the Circuit Court refused to quash the proceedings of the County Court, and ordered said issue to be made up and tried' — from this judgment or sentence of the Circuit Court, the executor has prosecuted his appeal in error to this court, and here two general questions present themselves for discussion — first, whether the judgment and sentence of the County Court, that the probate should be set aside and a reprobate take place, constituted a valid ground for appeal to the Circuit Court, and whether the rendition of such judgment or sentence in the Circuit Court, will sustain an appeal in error to this court; and if it will, was the action of the County and Circuit Courts erroneous or otherwise?

As to the first question, whether an appeal lies in such cases, the counsel for the plaintiff in error, refer to the act of 1794, ch. 1, sec. 63, which gives an appeal from any sentence, judgment or decree of the County Court, and the still broader provisions of the act of 1844, ch. 99, sec. 1, which gives an appeal to any person, who may consider himself aggrieved by any decree or decision of the County Court, and on the other side the act of 1811, ch, 72, sec. 11, which gives an appeal to this court from a final judgment, is relied on; the question is new in this State, and involves an inquiry into the nature of this preliminary trial. Our statutes, very briefly indeed, prescribe the mode of proceeding in the case, when a will is propounded for probate and its probate contested, but when it has been proved and recorded, and it is intended to set aside such probate and have the will repropounded, and its validity investigated in an issue of devisavit vel non, no mode whatever is prescribed and the statute seems silent as to such a case. It is well settled that V it is not a matter of course to set aside the probate and re-pro-batdthe will; it would be of most, mischievous consequence if it were so; a stranger will not be permitted to disturb the existing probate; a kinsman, who is not the nearest of kin, and who could take nothing under the statute of distributions, if there' were no will, shall not disturb it: the next of kin, duly notified by the executor to attend and witness the proceedings on the first probate, shall not disturb it, and other cases might be sup-^ posed. If any thus situated, present themselves to the County Court, and move to set aside the probate, and on a contest there this be ordered and decreed, why- shall not the executor be ' permitted to appeal from the final sentence as to this matter of controversy. Why compel him to-have the trusts of .the will delayed and everything thrown into confusion, and perhaps the will itself held to be invalid, in behalf of a stranger who can take nothing under the will? The principal contest itself, as to the validity of the instrument, is a proceeding of a very peculiar kind, of the nature of a proceeding in rem, and often leaves the rights of property or the questions of which are entitled under the will, to be settled by many a future suit. To set aside a probate and have this peculiar proceeding ordered, is, itself, a distinct matter of preliminary investigation, constituting the corpus of a legal contestation, proper to be settled finally, before the issue of devisavit vel non be. tried, and it does not so incorporate and blend itself with the subsequent proceeding, if one should take place, as not to be separated from it, and to be distinctly disposed of. This same question came under the consideration of that enlightened and able jurist, Judge Gaston, in the case of Harvey vs. Smith, 1 Dev. & Bat., Law Rep., 190; he says it has been usual to appeal from such decisions, and it has never been disapproved of; there are obvious conveniencies in such a practice, for if the adjudication be erroneous, it may be reversed, without either party incurring the expense of witnesses upon the issue. It comes within the construction of the act of 1777, which allows an appeal to the Superior Court, to either party, plaintiff or defendant, when dissatisfied with the sentence, judgment or decree of the County County. It is a sentence materially affecting the subject matter of contestations; in form, final, upon the point decided; and which the party dissatisfied ought to have an opportunity of reviewing in the appellate tribunal, before it leads to further mischief. In the case before Judge Gaston, the struggle was to maintain the power of the appellate court to decide this preliminary cause, in the principal cause, where no appeal had been taken upon it separately. The power to do so, was, indeed, asserted, but with decided preference in favor of the preliminary appeal, and if this can be done in North Carolina, a fortiori here, for the preliminary matter is all that is before the County Court; it cannot try the issue of demsavit vel non; it cannot make it up; it only certifies the original will; the contest for setting aside the probate and repro-pounding the will is the whole contest, the only contest that can be before that tribunal; when it disposes of this, it disposes of all; its action is final, in every sense of that term. In N. C. the issue of devisavit vel non is tried in the County Court. We are of opinion therefore, that the sentence and judgment of the County Court were such, in the present case, as that an appeal will lie to the Circuit Court.

2nd. Ought the Circuit Court to have set aside and quashed the proceedings of the County Court, upon any of the grounds referred to? In other words, was the husband, under the circumstances, entitled to set aside the probate and have a re-probate of his wife’s will? He was not a stranger. On the contrary, the situation in which he stood to the testatrix, prima facie, entitled him to have her will re-propounded. What then shall preclude him taking such a course? It is said the stipulations of the deed of marriage settlement of 1844, are such in point of legal effect, as to exclude him from the succession to her separate property, even if she had made no will. We think this is very probably so. But we should hesitate to give to these instruments, in this incidental way, the effect claimed for them, of preventing an issue upon the validity of the will, at the instance of one whose relations to the testatrix gave to him the apparent right to make up such issue. But we feel constrained to give a larger operation to the decree of the Chancery Court at its Oct. Term, 1844. The form and matter of this decree, are alike an estoppel against the husband disputing the will of the wife, or obtaining a re-probate of the same. It appears from the said decree that the suit was revived against the executor of Mrs. Spiers. The husband was the actor, and for good reason, for he had an interest to set up the deed of compromise of 1844, rather than the marriage settlement of 1840; if the latter had been construed to be his succession to the wife’s estate on behalf of her next of kin, he would have had to pay, not the fund of $8000, but the $20,000. The excessive abre-viation of all our forms must not be permitted to impair or destroy the legal effect of what may be done; that continues the same, as if the forms were as full as in former times. Suppose, by petition or bill, the husband, for the purpose of causing the deed of 1844 to be made the decree of the Court, according to one of its stipulations, had after the death of the wife, revived the suit, with same regard to forms. He would have alledged the agreement, the death of the wife, that she had duly made and published her last will and testament, and appointed thereof, Albert R. Wynne, her executor, that he had had due probate made of the same and had been qualified as executor, and taken upon himself the burthen of that office. And upon a copy of said bill or petition being served upon him, he would have come into court and agreed that all these things were true. This is the legal effect of what was done, and the estoppel is as complete, as if these forms had been pursued. Shall the husband, nowbe permitted to escape from this decree, from his solemn averment,- of record, that a last will and testament had been duly made, published and proved, and be allowed to set aside said probate? We are clear that he shall not be so permitted.

The matter of estoppel, from the fact, from the substance and from the form of said decree of revivor and final decree, as much precludes the husband from having the will propounded for a re-probate, as if, in the life of the wife, there had been a divorce a vinculo, or as if the marriage had never taken place, and he had been an entire stranger.

The judgment, therefore, of the Circuit Court must be reversed, and this court proceeding to give such judgment as the Circuit Court ought to have given, set aside and quash all the proceedings of the County Court.  