
    William Bradford v. Joseph A. Andrews et al.
    
    1. Where a proceeding for the contest of a will is commenced within the statutory period of limitation, although only part of the persons interested in the contest are made parties thereto, the right of action is saved as to all who are ultimately made parties, notwithstanding some of them are not brought into the case until after the period of limitation has expired.
    
      3. The plaintiff cannot in such case by dismissing his petition defeat the contest, where either of the defendants, in his answer, joins in the prayer that the will be set aside as invalid.
    3. The jurisdiction of the court of common pleas in such contests is not appellate but original, and the superior court of Montgomery county has concurrent jurisdiction therein.
    4. To entitle the defendant to set up in his answer a claim to relief by way of cross-petition, it is not necessary that the answer should contain a denial of the allegations of the petition, or a statement of new matter.
    Error to the superior court of Montgomery county.
    The original case was a petition of Joseph A. Andrews to contest the validity of the last will of John Bradford. The petition was in the form prescribed by the code, and was filed within two years after probate of the will. One of the defendants, William Bradford, filed an answer, in which, by way of cross-petition, he joined with the plaintiff in asserting the invalidity of the will, and in praying to have it set aside. A summons was thereupon issued and served upon the plaintiff and the other defendants, requiring them to answer this cross-petition of William. Subsequently, and after the expiration of the two years, the statutory period of limitation, the plaintiff dismissed his petition. A motion was then made by one of the defendants to dismiss the answer and cross-petition of William, on the alleged ground that the dismissal of the original petition put an end to the case. This motion the court overruled. It being then discovered that two of the parties interested ip the contest, namely, Eliza Bradford and Sarah Watson, had not been made parties to the proceeding, they were, on motion of William Bradford, made defendants, and served with process, requiring them to answer the cross-petition. Upon their appearance Eliza Bradford and Sarah Watson answered, setting up the statutory limitation of two years, as a bar to the action against them. On demurrer to this answer, and also on demurrer to the answer and cross-petition of William Bradford, the court held the answer of said Eliza and Sarah to be sufficient, and that the action was barred as to all the defendants, and gave judgment dismissing the same accordingly. To reverse tbis judgment is tbe object of tbe present petition in error.
    
      C. L. Vallandigham, for plaintiff in error, argued orally from tbe following heads:
    1. Did any person interested, witbin two years after probate of John Bradford’s will, appear and contest tbe validity of tbe will, witbin tbe meaning of section 19 of tbe wills act (S. & O. 1618), and section 24 of tbe probate court act (S. & O. 1216) ? And see section 20 of wills act, and 6 Obio St. 307.
    Under section 8 of tbe code of civil procedure (S. & O. 943) tbis question is to be tested, not by tbe code, but by tbe above-cited sections.
    But if under tbe code as to tbe mode of commencing, then section 20 controls (S. & O. 949). “ Commenced witbin tbe .meaning of tbis title [Limitation] as to each defendant from date of summons,” etc.
    2. Does tbe bar of the limitation inure, in actions witbin tbe original jurisdiction of tbe court, to tbe benefit of co-defendants not themselves entitled to it ?
    In tbis form, a new question in Obio.
    No limitation at common law.
    . It is an abridgment of tbe right secured by sec. 16, art. 1 of tbe constitution of Obio. “All courts shall be open and every person, for an injury done him in bis lands, goods, person or reputation, shall have remedy by due course of law, :and justice administered without denial or delay.”
    Construed strictly.
    Must be pleaded. Loclmood v. Wilhmson, 13 Obio, 430, ■451.
    Not allowed on appeal, nor after default. Sheets v. Baldwin, 12 Ohio, 120, 131, 132.
    Not a plea to the merits. Nusam's Adm'r v. Ran, 18, Ohio, 246.
    Under code must be tbe subject of demurrer or answer. Sturges v. Burton, 8 Ohio St. 215.
    .Note barred, yet mortgage securing it may be foreclosed. 
      Gary v. May, 16 Ohio, 66; Fisher's Ex'r v. Mossman, 11 Ohio St. 42, 46; approved, 14 Ohio St. 411.
    Nonsuit saving clause of act of 1831 extended by construction to the administration act. Haymaker v. Haymaker, 4 Ohio St. 272.
    Saving extended to grantee or heir of party saved. Ford's Lessee v. Langel, 4 Ohio St. 464. Followed in Wintermute v. Montgomery, 11 Ohio St. 446, 448.
    The general statute, or “ title,” as also the limitation in the wills act, consists of two points: 1. The bar; 2. The saving clause.
    
    The bar suspends the remedy by action, after a certain period.
    The sawing cUmse leaves to certain classes of persons their rights at common law, for a distinct period after “disability” removed.
    This case is new and peculiar in Ohio.
    Except Smetters and Harris v. Rainey et al., 14 Ohio St. 287, in all cases the pUwntiff was the party claiming the benefit of the statute.
    Except same case, it was the sawing clause claimed; not the bar set up.
    So in England, and other States.
    As to the distinction between co-plaintiffs and co-defendants, see Farmin v. Anderson, 53 E. C. L. R. 810, and Towns v. Mead, 29 E. L. & E. 271.
    This is a case of original, not appellate jurisdiction.
    Different rules govern.
    As to original, common law “ day in court.”
    Natural rights given up for judicial protection.
    “ Interest rei publicas ut sit finis litium,” applies not alone, yet peculiarly to appellate jurisdiction. Broom’s Leg. Max. 298 (margin). So “ lis vexatus " and “ twice injeogga/rdy."
    
    Even appeals and second trials as of course as to facts allowed in Ohio.
    As to distinction between restricting original and appellate jurisdiction, see Schooner Miranda v. Dowlin, 4 Ohio St. 502.
    
      A petition in error is not a “ civil action,” or “ suit,” but a “ special proceeding in an action after judgment? Code, sec. 602. And see code, sec. 512, and Taylor v. Fitch, 12 Ohio St. 169, 172, 173.
    Or “ a proceeding to enforce, vacate, modify, or reverse.” Code, sec. 602; and see Barger v. Cochran, 15 Ohio St. 461.
    Ohio cases — 1. Original jurisdiction: Moore et al. v. Armstrong, 10 Ohio, 11; Bronson v. Adams, 10 Ohio, 135; Meese and wife v. Keefe, 10 Ohio, 362. 2. Appellate jurisdiction: Wilkins v. Philips, 3 Ohio 49; Massie's Heirs v. Matthews' Ex'r, 12 Ohio, 351; Kay et al. v. Watson, 17 Ohio, 27, 31; Sturges et oil. v. Anderson, 1 Ohio St. 445, 561; Trimble et al. v. Longworth, 13 Ohio, St. 431, 442; Lampkin v. Chisom, 10 Ohio St. 450, and Code, sec. 371.
    As to the case of Smetters and Harris v. Rainey et al., 14 Ohio St. 287. (1). No authorities cited by counsel or Judge Peck. As to want of these, see Powers v. Bumcrantz, 12 Ohio St. 292, and Drake et al. v. Rogers, 13 Ib. 32, disapproving Dunn v. Evans, 7 Ohio, 169, pt. 1. (2). Apparently, if not actually, in conflict with Wilkins v. Philips, 3 Ohio, 49, and yet this case is not referred to.
    
      Wilkins v. Philips is held “settled law,” in Moore v. Armstrong, 10 Ohio, 17; Meese v. Keefe, Ib. 364; Massie's Heirs v. Matthews' Ex'r, 12 Ohio, 353; Sturges v. Longworth, 1 Ohio St. 562; Trimble v. Longworth, 13 Ohio St. 442.
    In Smetters and Harris v. Rainey et al., the jurisdiction was appellate; the “proceeding,” in error, and before a “revising court.”
    It was not an answer setting up a defence; but a motion to quash, and presented strictly a question of jurisdiction. So the court say, syllabus No. 4; and see p. 292 (not as to parties, but as to the subject-matter).
    
    So, too, in Grover v. Stone, 3 Ohio St. 576; and Schooner Marinda v. Dowlin, and Same v. Swain, 4 Ohio St. 500, 502, were “stricken from the docket;” and there can be no judgment for costs in such case. Newton v. McLeary, 8 Ohio St. 210.
    Great strictness as to appellate cases: 2 Ohio, 253; 4 Ohio, 175; 5 Ohio, 276; 6 Ohio, 33, 490; 10 Ohio, 197, 202; 11 Ohio, 420; Hubbell v. Rennick, 1 Ohio St. 174; 10 Ohio St. 453, 582; 11 Ohio St. 405; 12 Ohio St. 335; 4 Ohio St. 473; 6 Ohio St. 85.
    Jurisdiction is “ the power to hear and determine a canse.” 6 Pet. R. 709.
    Did it attach in this case as to the parties who were served within the two years 2
    As to the subject-matter, consent cannot give it. Rohn v. Dunbar, 13 Ohio St. 572; and cannot oust it. Wasson v. Heffner, 13 Ohio St. 573.
    But consent may confer jurisdiction as to parties. Gilliland v. Sellers, 2 Ohio St. 223.
    Jurisdiction as to the person is acquired by “ bringing the party into court.” Code, secs. 59, 73, 78.
    In Smetters and Harris v. Rainey et al., 14 Ohio St. 287, 290, 291, the court say that the judgment was “ joint,” and an “ entirety.”
    IJpon this ground, as to the will, the superior court in the present case based its judgment, as appears from the printed copy attached to defendants’ brief.
    But a will is not necessarily a will as to all who are named as devisees.
    Legacies, void — lapsed—conditional—adeemed.
    So, too, in ease of ambiguity as to person. See Banning v. Banning, 12 Ohio St. 451.
    So where child born after the will, or reported dead. S. & 0.1623, sec. 41.
    Or widow elects not to take under the will.
    And a will may be set aside after many years by one “ disabled.”
    But especially if the will do not dispose of the whole of the testator’s estate. Part is distributed to devisees, according to the will, and part to heirs, according to the statute of descents and distributions. As to devisees, it is a will; as to heirs, no will.
    Upon this point, I refer the court to Holt et al. v. Lamb et al., 17 Ohio St. 374, syllabus 4, and 387. This case was decided after the decision in the superior court of Montgomery county.
    If this were & forged will, would the court strain the bar of the statute so as to include those not entitled to it ?
    As to Meese and wife v. Keefe, 10 Ohio, 363, if the court adhere to it as interpreted for the defendants, they ought rather to construe it as avoiding the ba/r as to Sarah Watson and Eliza Bradford, rather than extending it to their co-defendants.
    And it seems inconsistent with Mears v. Mears, 15 Ohio St. 95; Gardner v. Gardner's Ex'rs, 13 Ohio St. 430; Thompson v. Thompson, Ib. 358-361, citing Clark v. Morrison, 25 Penn. St. 453. And see Redfield on Wills, 322, 323.
    The distinction as to limitation of “ actions and suits,” and limitation of “proceedings in error,” is recognized in the index in vols. 10, 12, 13 and 14, of the Ohio State Reports.
    The court below did not decide that it had no jurisdiction of the persons of Sarah Watson and Eliza Bradford; still less as to the subject-matter; but only, in the exercise of its jurisdiction, that they had a good defence.
    The plea of limitation no more “ ousts the jurisdiction ” of the court than the plea of payment.
    
      Young & Gottschall and Houle ds McMaha/n for defendants in error:
    1. The court below did not err in its rulings and judgment.
    Sec. 19, statute of wills (S. & 0.), says: “ If no person interested shall within two years after probate had, appear and contest the validity of the will, the probate shall be forever binding.”
    Until made a party neither Eliza Bradford nor Sarah Watson coxild be bound by the verdict or decree, nor could their rights be at all affected by the proceeding; and the probate as to them remained as valid and binding as if no case had been commenced. Holt v. Lamb, 17 Ohio St. 385-387.
    So far as they were concerned, within two years aftej probate had, no one appeared and contested the validity of the will. After that time the probate as to them, at least, was “ forever binding.” The estoppel was mutual Neither of them coxrld contest the will against the other parties, and the latter cordd not contest-it as against them.
    The judgment is not in conflict with the decision in Walker v. Walker, 14 Ohio St. 157. In rendering the judgment the court does not pass upon the validity of the will, but simply decides that the issue cannot now be made up to try its validity, because the action was not commenced in time to give the court and jury jurisdiction. And this fact being admitted, what is there for the jury to try?
    
    It was not sufficient that an action against some of ths defendants was commenced within the two years.
    1. There was no “unity of interest” but only a “continuity of interest ” between the parties. Unity means indivisibility. In one sense all parties have a common interest in a will; that is, the will affects them all in common. But they generally have very different and often adversary interests in it. And see Thompson v. Thompson, 13 Ohio St. 356.
    The statute says an action shall be deemed commenced as to each “ defendant ” at the date of summons upon himself or on a “ eo-defendcmtP Code, sec. 20; and see secs. 55, 85, 56, 57.
    Now, until the two years had elapsed Eliza Bradford and Sarah Watson were not defendants at all; and hence, within the two years, as to them, there were no “ co-defendants,” and no service upon any co-defendant of theirs; and no action commenced against them within that time by service upon a co-defendant.
    Nor did any of the defendants undertake to defend for these two or for their benefit, or to represent them. Nor did it appear from the record that they had any interest, common, general, or otherwise.
    The action to which they were made defendants, but not in due time, failed upon its merits, and this is a proceeding reverse it, but not a new action.
    
      2. No action having been commenced against two of the legatees under the will, within the two years, and this suit having been dismissed, and the will being consequently valid as to them, the court had no jurisdiction to proceed against the other defendants.
    The provisions of the statute which apply to this case are : wills act, secs. 15, 19, 20, 21, S. & C. 1618; probate act, secs. 24, 25, S. & 0.1216; Code, sec. 70, S. & C. 964.
    Under these provisions of the statute, the issue is — was this paper, this writing here produced and offered to the jury as a unit, one indivisible thing, the last will of the testator ? Not, was this line, this paragraph, this page, this legacy or this devise valid ? Not was this writing a valid will as to A., B. and C., the parties to this suit ? But does the writing, as a unit, possess the qualities which, under the laws of this State, make it the last will of the testator. Mears v. Mears, 15 Ohio St. 94-98.
    
      As to parties : There can be no contest without parties. Code, secs. 70, 85; 17 Ohio St. 386; wills act, sec. 21. What parties are meant % Not certainly such parties only as the plaintiff may choose to make defendants to his bill or petition, but proper parties, or all whose rights are to be affected by the verdict or decree, viz.: all the heirs, distributees, legatees, and devisees. Mears v. Mears, 15 Ohio St. 96; 2 Redfield on Wills, 29, note 30.
    The controversy cannot be determined without prejudice to the rights of absent parties, and hence cannot be determined at all until these parties are brought in. Code, sec. 40.
    And this is so, because of the unity and indivisibility of the subject of the action, and because the common interests of the parties cannot be saved.
    See Meese and wife v. Keefe et al., 10 Ohio, 362; Wilkins v. Philips, 3 Ohio, 49; Massie v. Matthews, 12 Ohio, 351; Sturges v. Longworth, 1 Ohio St. 544, for cases in which the saving of one inures to the benefit of all.
    Now, for a similar reason, viz.: the unity, entirety, and indivisibility of the subject of the action, and the impossibility of severing the interest of the parties, it would seem that where the statute has run in favor of one of the parties, so as to protect him against a contest, that protection necessarily extends to all. This court has declared this principle in Smetters v. Rainey et al., 13 Ohio St. 568; Smetters and Harris v. Rainey et al., 14 Ohio St. 287.
    This case disposes of all the points made by the plaintiff in error in the present case. The action was not deemed pending from the date of the summons served upon a co-defendant, and was not regarded as having failed otherwise than upon its merits; and the plea of the statute of limitations by one defendant ousted the jurisdiction of the court over the subject-matter, and the action was dismissed as to all the defendants.
    The case of Holt v. Lamb, 17 Ohio St. 374, is not against us. In a proceeding to contest a will to which only a part of the persons interested are made parties, the verdict binds only the parties, and it binds them only by way of estoppel. This is the gist of the decision; and surely there is nothing in it which decides or even justifies an inference that the validity of a will can be properly tried and determined in a contest between only part of the persons interested. Quite the contrary is the effect of the decision.
    3. But we deny that, under any circumstances, the superior court had jurisdiction of this case. Sec. 12 of the act to establish said court. S. & C. 393; Const., art. 4, sec. 4, and S. & C. 386, as to jurisdiction of the common pleas; Const., art. 4, sec. 8, and probate act, sec. 2, S. & O. 1212, as to jurisdiction of the probate court; probate act, secs. 24 and 25, S. & C. 1216, and wills act, sec. 20, S. & C. 1618, as to contest of will.
    From these sections of the constitution and statutes it will be seen that the jurisdiction of the superior court is limited by the original jurisdiction of the court of common pleas.
    Now, in the trial of an issue made up to determine the validity of a will, the court exercise the powers and jurisdiction of a court of probate. Mears v. Mears, 15 Ohio St. 90.
    The probate act and wills act, by which jurisdiction is conferred on the common pleas to try such contest, both pertain exclusively to probate and testamentary matters.
    The whole issue in the contest relates to the probate; and the only question to be tried, or which can be tried, to the court and jury, are the questions submitted to and determined by the probate judge in granting .the original probate.
    By the constitution original jurisdiction in probate matters is conferred upon the probate court, which jurisdiction is by statute made exclusive.
    The original probate is a judgment by the probate court binding against the world, and absolutely unimpeachable and conclusive in all other courts both in law and equity, and cannot be called in question or disputed collaterally. 2 Redfield on Wills, p. 41, secs. 5-1.
    The object of the contest is to reverse or set aside this judgment.
    It follows that the jurisdiction of the common pleas is not original, but appellate.
    It is not original, because until the probate court has first pronounced its judgment upon the subject-matter, the common pleas has no jurisdiction at all.
    It is appellate, because it reviews the judgment of the probate court, and, in effect, affirms or reverses it. A writ of error or reservation of a case from the district court is appellate jurisdiction. Chase v. Washburn, 2 Ohio St. 101.
    Like as in an appeal, the will, testimony, and original papers relating thereto are required to be transferred to the common pleas,, and the judgment of the common pleas is required to be certified back to the probate court.
    But if the jurisdiction of the court of common picas in such case is not original, then the superior court has nojurisdiction.
    4. If however this court shall be of opinion that the superior court had jurisdiction over the subject-matter, still we claim that such jurisdiction was not properly invoked in this case.
    The two modes of contest are by bill in chancery or petition under the code. By one of these modes the jurisdiction of the court must be invoked, or it is not invoked at all.
    
      The plaintiff in the case below chose the latter mode, and to his petition the plaintiff in error filed what he calls “ an answer and cross-petition.” This answer was not an answer, because it contained no denial, or statement of new matter constituting a defence, counter claim, or set off, but simply a repetition of the allegations of the petition; and it was not a cross-petition because it was not an answer. Code, secs. 92, 84. Not being a counter claim or set off, the defendant (plaintiff in error) had no right to proceed to trial after the original petition was dismissed. The plaintiff had the right to dismiss his case at any time before the final submission to the court or jury, and such dismissal dismissed the whole case except as to a defendant who had presented a counter claim or set off. Code, secs. 372, 373. The plaintiff did dismiss the case, and with it the “ answer and cross-petition ” of the plaintiff in error.
   Welch, J.

We think the superior court erred in holding the action barred, and in dismissing the proceeding. Where a petition for such a contest is filed within the statutory period of limitation, although only part of the persons interested are made parties thereto, the right of action is saved as to all who are ultimately made parties, notwithstanding some of them are not brought into the case until after the period of limitation has expired. If any person interested appears, and in good faith files his petition for a contest, the statute entitles him to a trial, and the verdict of a jury, touching the validity of the will; and that verdict will be binding upon all parties who may be before the court as such, at the time of its rendition. The interest of the parties is joint and inseparable. Substantially this is a proceeding in rem, and the court cannot take jurisdiction of the subject-matter by fractions. The will is indivisible, and the verdict of the juiy either establishes it as a whole, or wholly sets it aside. To save the right of action therefore to one is necessarily to save it to all. The case belongs to that class of actions where the law is compelled either to hold the rights of all parties in interest to be saved, or all to be barred. And it seems now to be quite well settled law, that the preference will in such cases be given to the right of action, and not to the right of limitation. The right to sue is a favored right, and is guaranteed by constitutional provision, while the right of limitation generally meets with more or less disfavor. I am aware that the case of Smetters and Harris v. Rainey and others (14 Ohio St. 287) conflicts with this doctrine, and I am frank to say, for myself, that I deem that case a departure from well-established principles, and one that should be overruled whenever a proper case occurs for reconsidering the question involved. The question there, though really involving a like principle with that involved in the present case, was not identical, and need not, therefore, be passed upon by the court.

But, say the counsel for defendants in error, the plaintiff below dismissed his petition, after the expiration of the two years, and this put an end to the action, and left the matter standing as it would have stood had no petition ever been filed. When the jurisdiction of the court has once attached in such a case, I suppose it is not in the power of the petitioner to withdraw the action against the will of the other parties in interest. The status of the parties, as plaintiffs or defendants, is merely nominal. Those named as defendants have a right, equally with the nominal plaintiff, to insist upon a contest. Otherwise, there woxild be no safety to the defendants who happened to be identified in interest with the plaintiff, except in the commencement of separate similar actions, or the filing of a cross-petition by each.. We need not, however, decide this question, for the precaution was taken in the present Case to file such cross-petition before the period of limitation had expired or the original petition had been dismissed.

But it is contended that this cross-petition was not well filed, and was a nullity, becaiise the answer containing it is not such as the code requires. The argument is this : The proceeding is an action under the code, and not by bill in chancery; relief by way of cross-petition can only be had under the code (sec. 84), by a claim therefor set up 'in the answer; and the answer of William Bradford, in which this prayer for relief is contained, being in perfect accord with the plaintiffs case, is not an answer within the definition of the code (sec. 92), because it does not contain a “ denial ” of any allegations in plaintiffs petition, or a statement of any “ new matter constituting a defence, counter claim, or set off.” We think this logic unsound. If it is not, and if counsel are right in claiming that the plaintiff can, at any time, withdraw tne whole case by dismissing his petition, then no defendant in the action is safe against the statute of limitations, without commencing a separate and independent proceedingand thus, in every contest there might be as many actions as there are parties desiring to set aside the will. This cannot be the law. An answer admitting the case made in the petition, and joining in the prayer for relief, is an answer within the meaniug of the code, entitling the respondent to set up and claim therein relief by way of cross-petition, according to the provision in the 82d sec. of the code. The 92d sec. of the code only requires that the answer shall contain a “ denial ” of allegations that are “ controverted,” and a statement of “ new matter ” where there is any ” such new matter. Here no allegations were controverted, and there was no new matter to set up. The 92d section was never intended to include an affirmative answer to the petition, nor was section 82 intended to drive the defendant to his separate action for relief, in all eases where he could not truthfully deny, or justly avoid the case made in the petition. It should be observed, moreover, that if counsel for the defendants in error are right in this position, it matters not in the present case, because the cross-petition of William Bradford has all the substantial elements of an original case, process at his suit having been served upon the other parties, requiring them to answer his cross-petition.

Another ground taken by counsel for the defendants in error is, that the superior court had no jurisdiction of the subject-matter, and that therefore the judgment of the court rHsmiRsing the action was a right judgment, although based upon a wrong reason. They say that the jurisdiction of the common pleas in will contests is appellate, and cannot, therefore, be exercised by the superior court, which has no appellate jurisdiction. We think that the jurisdiction of the common pleas in such cases is original. The statutory contest of a will lacks the essential elements of an appeal. It has not the same parties as in the court below. In the latter, in fact, it is purely ex ¡pa/rte, while in the common pleas it is i/nter gga/rtes. In the same statute which provides for the contest there is an express provision for an appeal,” in cases where the probate of the will is refused (S. & C. 1216, secs. 22 and 23), requiring notice of the intention to appeal, and pointing out the steps to be taken in order to perfect the appeal. No similar provisions are made for cases where the will is admitted to probate. The contest is an original proceeding, not otherwise connected with the probate of the will, than in the fact that it cannot be had until the probate takes place, because until then there is in law no will to contest, and in the further fact that on the trial of the contest the record of probate is to be used as evidence. Before the establishment of the probate court, the probate of the will and the contest were iu the same court. Had the legislature intended, by tbo act establishing the probate court, so far to change the nature of a will contest from what it had been for long years before, as to make it an appeal, instead of an original proceeding, they certainly would have made more direct provisions for that purpose. They, moreover, would hardly have left the right of appeal to depend on whether the party chose to bring his action under the code, or to file a bill in chancery under the wills act.

We are of opinion that the superior court erred in dismissing the action, and therefore, reverse its judgment, and remand the cause for further proceedings.

Judgment aeeordmgly.

Beinkerhofr, C.J., and Soott, White, and Day, JJ., con curred.  