
    Gibson vs. Lane.
    Where a paper purporting to be a will h: s been proved in common form by the ezparte examination of witnesses, the probate may be set aside after the lapse of eighteen years, and an issue of deoisavit vet non be directed to try itsvalidity.
    This was a petition filed by the plaintiff in error, in the county court of Maury county, at its June term 1S34, to Set aside the probate of a paper, purporting to be the last will and testament of William Gibson, deceased, and praying that an issue may be directed to try whether or not said paper is the last will and testament of said William Gibson deceased.
    The petition in substance alleged that the petitioners are heirs at law of said William Gibson, deceased. That the said paper purporting to be his will (which is exhibited jwith ^16 P6*^011) vvas produced In the said county court at its No-term 1816, and was proved as the will of the said William Gibson, dec’d. by the oath of Jacob Yanset, one of the subscribing witnesses thereto, and ordered to be recorded. That this probate was exparte, &c., and that the said paper purporting to be the will of said William Gibson was in fact a forgery.
    The petition further alleged that the petitioner’s had no notice that said paper would be presented for probate, at said term or at any other. This petition was sworn to in open court.
    The county court at its succeeding December term, ordered that the probate of 1816, should be set aside and directed an issue to try the question whether it was the will of William Gibson or not.
    Afterwards, to wit: at the March term 1835, of said court, the defendants moved the court to quash the order setting aside the probate and directing an issue, which motion, after argument had thereon, the court sustained,, and from this order the plaintiff appealed to the circuit court, where the judgment of the county court was affirmed. From this judgment an appeal was prosecuted to this court.
    
      C. Ready, for plaintiffs in error.
    The summons and all the proceedings in this cause are regular and in due form, and ought not to have been quashed for any informality.
    There is no particular form of proceeding required in such cases. A lawful heir of the deceased, who had not been notified that the will would be presented for probate, had a right to apply to the court for a citation to issue to those claiming benefit under the will, to appearand answer. Martha Howell v Hitchinch and others 4th Hay. 49 & 50. Fimucanv Gay-fur. 1 Eng, Ecclesiastical Reps. 425.
    The object of the citation is to get the parties before the court, and when they appear they cannot afterwards take exceptions to the form of process.
    The petition upon which a citation issues, need not be for-, mal; indeed there is no practice in this State or elsewhere, making it necessary to file a written petition. The citation might well issue upon suggestion. But in this caso the petition is formal, and shows substantive facts, which if true, the petitioners an unquestionable right to call in the persons interested in supporting the will, to show cause.
    If the petition and summons or citations, were informal, still they ought not to have been quashed. /See statutes of 1794, c 1, § 62.
    If there existed any good objection to the nature and form of the process issued in the cause, it ought to be taken advantage of by plea in abatement, and not by motion to quash Nashville Bank-vs Henderson, 5 Yer. 104; and if a plea in abatement is relied on, it must be verified by affidavit. See statutes of the State, and Young vs. Stringer, 5 Hay. 32.
    The circuit court, it is believed proceeded upon the ground, that the plaintiffs could not call in the will to set aside the probate or contest its validity after so great a lapse of time. But if time would operate as a bar, it could not be taken advantage of by motion to quash. It should have been by plea. Limitation of time must always he pleaded, or the court will not notice it. Colson vs Blanton, 3 Hay, 182.
    There is no statute of limitation in such a case as this. The heirs, when a will has been proved in common form, may call it in, and contest the probate at any time. See 1 Williams on Executors 192 — 3, In England it has beep held that a will could be called in, and the probate contested, after a lapse of twenty years from a probate in common form. See Eng. Ecclesiastical Reps. 1 vol. 151, the case of Saltern white vs. Salterie hile, and page 425, case of Tiuiucan vs. Gayfur.
    
    Bacon mentions a case when after a lapse of forty years, the heirs of the deceased were permitted to contest the will.
    
      R. J. Meigs, for defendant in error.
    What would be the effect of annulling a will, circumstanced as in this cas.e, after the lapse of eighteen years? The administratrix cum testa-mentó annexo, was the only legatee, and having taken possession under it, she cannot be said to have held as trustee, or if she did, it was as trustee for herself, and consequently her holding was adverse to the petitioners. She was suffered to eni0y the property during her life without disturbance, and at J J i r J o her death it passed to her heirs at law, ior such they are, r ... i though it be true as alleged m the petition, that they are the children of her illegitimate son. Now when it is probable that the witnesses to the will are dead, and all other means oí proving it are inaccessible, application is made for an issue. Wherefore grant it, when if the will were declared void, the Statute of limitation, or the lapse of time, one or both, would completely protect the defendants? Supposing the will to have been annulled in the life time of the devisee, and then a bill to have been filed against her by the present petitioners, alleging that the will was a forgery, and that the fact of the forgery had been recently discovered, &c.; all this might make a case for relief. But even all this would not entitle them to relief against the heirs of the devisee, for as to them, the will, though a forgery, would be a color of title sufficient to give operation to the statute of limitations.
    But whatever may be thought of' the statute of limitations perfecting the title of the defendants to this property, there can be little room for doubt as to the efficacy of lapse of time. In every state of society, possession alone gives an exclusive title against all men but the rightful owner. In every civilized community on earth, without exception, this same possession long continued has been allowed to confer on the possessor a title completely exclusive. There must be some principle upon which this universal consent is founded. What is it? In the first place, it is presumed that every possession is rightful till the contrary appears. In the second place, it is presumed that every person will naturally seek to enjoy what belongs to him, and if he remains silent for a long time, the inference fairly deducible from his neglect, is either that his original title was defective, or if good, that he intended to relinquish it. 1 Ruth. In. c. 8: 2 do. c. 9, § 3, 6: Camp. Gro. Book 2, c. 4: Vat. Book 2, c. 11: Wheaton’s International Law, 137-8.
    Accordingly, in a case in South Carolina precisely like the present, 1 Hill’s Ch. R. 381, the court say they would presume that the parties who were of full age at the time of the probate, released to the devisee, (who was, as in this case, the wife of the deceased, and administratrix cum testamento an-ncao,) their interest in the estate, or their right to contest the will. Thus if the very rightful owner of property may preclude himself by continued negligence, from setting up his claim against even the naked possession, much less will one whose title is barely possible, be permitted to disturb a possession which is clothed with a probable right. For surely the lapse of eighteen years ought to create a probability that a possession is rightful, and while it creates this probability on the one hand, on the other, it reduces the right of the negligent claimant to a bare possibility.
   Turle y, Jk

delivered the opinion of the court.

The only question in this case is, whether the court erred in quashing the proceedings and refusing to try the issue of dcvisavit vel non. We are of ©pinion it did'; we can see n©> reason for so doing. The proceedings are regular, and the plaintiffs in the petition were efflti'tl'ed to a trial. The time which was permitted to efepse from tlie ordinary- probate of the will, until this application was made to have it fully'proved upon an issue of dcvisavit vel non, being about eighteen years, is n,ot a bar to the proceeding. We do not say what length of time would be sufficient for this purpose; certainly not less, than twenty years. In the case of Satterwhite vs. Satterwhite, 1 En. Con. Eec. R. 151, and same book, page 425, it was held, that a will* could be called in and the probate contested after the expiration of twenty years from the time of the probate in common form.

The argument that the statute of limitations would protect those who might have acquired rights under the will proven in. the ordinary form, and that therefore, there could be no use-in having an issue of dcvisavit vel non, does not alter the rule-of law. Upon the trial of this issue, the right of the property cannot be called in question, and if the persons who may be. 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. Then, inasmuch as the court could not know whether the statute of limitations would bar the proceedings for the recovery of the property, if the will be not set aside, and could not try this question upon proceedings instituted to test the validity of the will, we think the court erred in quashing the proceedings. We therefore reverse the judgment, and remand the cause with instructions that the issue made up be tried by the court.

Judgment reversed.  