
    Case 15 — PETITION EQUITY
    Feb. 8.
    Arterburn’s Executors v. Young, &c.
    APPEAL. PROM LOUISVILLE CHANCERY COURT.
    1. A complete law on the subject op wills is contained in the chapters on wills in the Revised and General Statutes.
    2. An appeal prom the order op a county court, probating or rejecting a will, must be taken to the circuit court within five years after the rendering of the order; and in this there is no saving in favor of infants. (Secs. 28, 88, chap. 106, Rev. Stat.; secs. 27, 37, chap. 113, Gen. Stat.)
    3. An appeal prom the judgment op a circuit court, ordering a WILL TO BE PROBATED OR rejected, to the Court of Appeals, must be taken.within one year after the decision in the circuit court; and in this there is no saving in favor of infants.
    
      But an adult or infant, when not a party to the proceedings in the circuit court, in addition to the right of appeal from that court within one year, may, by proper proceedings in equity, instituted within three years after the final judgment in the circuit court, impeach the validity of the judgment of the circuit court, and—
    
      An infant may assail or impeach the judgment of the circuit court, if not a party to the proceeding, within twelve months after attaining full age. (Secs. 28, 38, chap. 106, Rev. Stat.; Secs. 27, 37, 38, chap. 113, Gen. Stat.)
    4. The right or title op the purchaser op real estate prom a devisee is not affected by the reversal, by the circuit court, of the judgment of the county court, probating a will on an appeal prosecuted by the infant children of the testator, more than five years after the rendering of the order of probate in the county court. Such a judgment of reversal is held to be void, in this case, as to all not parties to the appeal proceedings in the circuit court, and did not create a lis pendens against such prirchaser.
    RUSSELL & HELM por appellants.
    1. The probate of a will by a county court is an ex-parte proceeding. It is in the nature of a proceeding in rem. It presents the question of will or no will, and the decision of that question is, while it lasts, binding not only upon the parties interested in the probate or rejection of the will and their privies, but upon all the world. It is conclusive of the question of will or no will, and as to the rights of parties under the will until the order is superseded, reversed, or annulled. (Wells on Bes Adjudicata, sec. 576; Mitchell v. Holder, 8 Bush, 362; Gilbert v. Bartlett, 9 Bush, 49; Moore v. Tanner’s adm’r, 5 Mon. 42; Toller’s Law of Ex’rs, 76; Williams on Ex’rs, 239 and 251; 3 Bedfield on Wills, 119; Greenleaf on Ev., sec. 550; King v. Bullock, 9 Dana, 41; Singleton v. Singleton, 8 B. Mon. 347; Jones v. Jones, 14 B. Mon. 373; Tibbatts v. Berry, 10 B. Mon. 474; Woods’s adm’r v. Nelson’s adm’r, 9 B. Mon. 600; Boderiga v. East Biver Nav. Co., 63 N. Y. 460.)
    The foregoing cases establish conclusively that the acts of the executor are binding upon all the world, although the will is thereafter successfully impeached and set aside.
    2. Section 884 of the old Code has no relation whatever to appeals from the county to the circuit court, as adjudged by the lower court in this case.
    Section 28, chapter 106, Bevised Statutes, fixes the time within which appeals may be prosecuted in will cases. See also sections 27 and 38 of same chapter.
    3. There may be a difference between the power of an executor and that of a devisee. Both, however, derive their authority from the same source. The title of each is derived from the will. If the will is declared a nullity, the person named as executor is no longer executor. His acts, however, under the will, are valid. A devisee takes the property devised under and by virtue of the will. If the executor, as such, sells and conveys property, he does it by virtue of the power given him by the will. .If a devisee sells and conveys property devised to him, he does it by virtue of the power given him by the will.
    See section 8, p. 552, 1 Stanton’s Bevised Statutes, which provides that “ when the heir or devisee aliens before suit brought,” etc. See also act of 1796, M. & B.’s Digest, 743; Chambers v. Davis, 17 B. Mon. 532.
    4. Debell v. Foxworthy, 9 B. Mon. 228, and Watson v. Wilson, 2 Dana, 406, differ widely from the case at bar, and do not show that appellant’s testator was a Ms pendens purchaser.
    5. On the questions and claims as to improvements, the following cases are cited, to wit: Sec. 1, art. 1, chap. 70, Bev. Stat; Gen. Stat., p. 678; Thomas v. Thomas’s ex’r, 16 B. Mon. 423; Barlow v. Bell, 1 Mar. 246; Bell’s heirs v. Barnet, 2 J. J. Mar. 516; 4 Bibb, 447; Pulliam v. Jennings, 5 Bush, 433.
    JOHN B. JAMES fob appellees.
    1. Arterburn was a purchaser Ms pendens, and with notice of the rights of the infant appellees. (Debell v. Foxworthy, 9 B. Mon. 230; Watson v. Wilson, 2 Dana. 406; Earle v. Couch, 3 Met. 455; Clarey v. Marshall, 4 Dana, 95.)
    
      2. Mrs. Lemberger held tbe land as devisee, and not as executrix. As executrix her acts are binding, even if the office is only held under color of authority; but as devisee it is otherwise. The cases of Moore v. Tanner, 5 Mon. 42 ; and Woods v. Nelson, 9 B. Mon. 600, were therefore not analogous.
    3. As to the purchaser’s claim for improvements, the following are cited, to wit: Thomas v. Thomas, 16 B. Mon. 425; Barlow v. Bell, 1 Mar. 246 ; Bell v. Barnet, 2 J. J. Mar. 516.
    H. B. COOK and D. JAMES on same side.
   CHIEF JUSTICE PR YOB

delivered the opinion op the court.

A paper purporting to be the last will and testament of Conrad Young was properly proved and admitted to probate by the Jefferson County Court, on the 23d of May, in the year 1860, by which he made his wife, Anna M. Young, his sole devisee, and also executrix. At the time of his death he was the owner of valuable real estate in the city of Louisville, and left surviving him several infant children, who are the appellees in this appeal.

The widow took possession of the property, and retained the use and occupancy for many years, and having intermarried with one Lemberger, she and her husband, on the 16th of October, in the year 1872, borrowed of Norborne Arterburn several thousand dollars, to secure which they executed to him a mortgage on the real estate devised to Mrsi Lemberger by her first husband. Other mortgages were afterward given on the same property, that were foreclosed, including the mortgage to Arterburn; and Arterburn became the purchaser at the sale made by-the commissioner. The sale was confirmed, and the latter placed in possession.

On the 19th of April, 1875, an appeal was taken by the infant children of Conrad Young (they being still infants) from the order of the Jefferson County Court, admitting the will of their father to probate, to the Jefferson Court of Common Pleas, and upon the hearing in that court it was adjudged that the paper in controversy was not the will of Conrad Young, and reversed the order of the county court.

After the judgment rendered in the common pleas court, the children of Young instituted the present action against Arterburn, to recover the real estate purchased by him under the mortgage, on the ground that the reversal of the order of the county court operated to divest their mother of title, and that, claiming under her, Arterburn’s title is also gone, and this being the opinion of the chancellor, a recovery was had, of which Arterburn’s representatives now complain.

Without determining the effect of a judgment of probate, or intending to dissent from the opinion of the learned chancellor as to the title acquired by a purchase from the devisee, we will proceed at once to the consideration of the question as to when the infant in this class of cases must prosecute an appeal in order to affect the rights of others.

The mother, in this case, was a party to the appeal from the county court to the circuit court, and although fifteen years had elapsed after the order of probate, before the appeal was taken, no objection was made to the proceeding, and therefore, as to the mother, the judgment below was proper; but, as the appellant, who was a purchaser from her, was not before the court, the question arises, when should the appeal have been prosecuted in order to make him a Us pendens purchaser? The chancellor seems to have based his opinion on the sections of the Code authorizing appeals to the Court of Appeals in connection with the provisions of the 22d section of the old Code.

Under the present Code of Practice a party appealing to this court must do so within two years next after the right to appeal first accrued, and as to an infant an appeal can .be granted to him, or his representative, within one year after his death, or the removal of his disability, whichever may first happen. (Sec. 745 new Code; sec. 884 old Code.)

The only difference between the two Codes, as to the limitation, is that by the old Code the limitation was three instead of two years.

The appeal in this case was to the circuit court, and we can not perceive in what manner the sections cited from either the new or the old Code are to affect the appeal from the county court to the circuit court. ,

Section 22 of the old Code provides that “ appeals from orders and judgments of the county court may be taken in the same time, and in a similar manner, with appeals to the Court of Appeals.”

This provision is omitted from the new Code, but as the questions arising on this appeal are to be regulated and determined by the provisions of the former Code, it becomes necessary to inquire whether this section has any application to appeals from orders of the county court admitting a will to probate or rejecting it. The manner of taking the appeal is not involved by any of the questions raised, but the time in which an appeal must be taken in such a case, and the saving, if any, in favor of the infants, are questions, the determination of which must control the decision of this case.

That appeals, in nearly all cases, from the county court were regulated under the old Code as to time and manner, by the provisions applicable to appeals to this court, is not controverted.

The chapters on wills found in the Revised Statutes and the old Code contain a complete law on the subject. The mode of executing such instruments, the manner of probate, the county in which the probate must be made, the manner of contesting, its effect when admitted to probate, the'time and manner in which appeals are to be prosecuted, and the saving in favor of infants, etc., are matters all regulated and determined by the provisions of the law as contained in the two chapters referred to.

A similar chapter, containing like provisions, is also found in the General Statutes, evidencing a plain intention that its provisions were intended to regulate the entire proceedings in reference to wills.

By the provisions of both the General and Revised Statutes appeals or writs of error from the circuit court shall “ be sued out within five years after rendering the order of probate or rejection in the county court, and from the Court of Appeals within one year after the final decision in the circuit court.”

As to all persons not parties to the record, they “ may, within three years after such final decision in the circuit court, by bill in chancery, impeach the decision, and have a retrial of the question of probate, and either party shall be entitled to trial by jury.” “An infant, not a party, shall not be barred of such proceedings in chancery until twelve months after attaining full age.” (Secs. 28 and 38, chap, on wills, chap. 106, Rev. Stat.; sec. 27 and 37, chap, on wills, Gen. Stat.)

The legislative purpose, in framing this law, was to make an exception with reference to appeals from orders of the county court in cases of wills, and to regulate the time in which an appeal must be taken to preserve the rights of the parties in interest as well as to enact such pi’ovisions as wei’e deemed necessary to save the rights of infants; therefore section 22 of the old Code, regulating the manner in which appeals are ordinarily taken from the county court, can not be made to apply to this character of case, the statute especially providing that appeals may be taken within five years from an order of the county court probating or rejecting a will; and the only saving in favor of an infant is that, when not a party to the proceedings in the circuit court, he shall not be barred of his right to assail the judgment in that court by a proceeding in equity, until twelve months after attaining full age. Regarding therefore the Revised Statutes and the chapter on wills in the old Code as containing, at the time the appeal from the county court was taken, all the law on the subject of the probate of wills, the right of the infants to an appeal was barred, and the reversal of the judgment did not affect the rights of the purchaser from the devisee.

The appeal must be taken to the circuit court within five years, and there is no saving in favor of infants. The appeal from the circuit court to the Court of Appeals must be taken within one year, and there is no saving in favor of infants. An adult or infant, when not a party to the proceeding in the circuit court, in addition to the right of appeal from that court within one year, may, by a proceeding in equity instituted within three years after final judgment in the circuit court, impeach the validity of the judgment, and the only saving in favor of the infant is that he may assail the judgment rendered in the circuit court, if not a party to the proceedings, within twelve months after his disability is removed. Why the law-making power saw proper to enlarge the time for taking an appeal in this class of cases and take them out of the ordinary rules by which appeals are prosecuted and governed, is not the subject of inquiry here. It is true an infant may have all the remedies that an adult is entitled to for the purpose of enforcing or vacating a judgment, but this does not affect the provisions of the statute by which the rights of infants and adults are clearly defined, and the manner and time for prosecuting an appeal regulated. The legislature no doubt thought that five years would give the parties, whether adults or infants, ample time to prosecute an appeal from the county court, and that a failure to do so would remove the uncertainty as to the title, unless the rights of the infant are brought within the saving clause of the statute.

In examining the title to this real estate the appellants found that the will of Conrad Young had been admitted to probate, by a court of competent jurisdiction, twelve years prior to his purchase, and that the time for an appeal had long since elapsed. The appeal was prosecuted by the infants near fifteen years after the order of probate had been made. In such a case the infants were barred of their right to an appeal, and the appellant can not be regarded as a lis pendens purchaser. The judgment is therefore reversed, and the cause remanded with directions to dismiss the petition as to the appellants. (Watson v. Wilson, 2 Dana; Clarey v. Marshall’s heirs, 4 Dana; Debell v. Foxworthy, 9 B. Mon.; Clark’s heirs v. Farrow, 10 B. Mon.; Earle v. Couch, 3 Met.)

To THE PETITION OF COUNSEL FOR APPELLEES FOR A REHEARING,

CHIEF JUSTICE PRYOR

delivered the following eesponse OP THE court:

To hold that there is a saving in favor of the infants in this case would be to enlarge the provisions of the statute affording the remedies to which these parties were entitled. In the case of Cleveland’s administrator against Lyne the parties had been required to elect whether they would proceed at law or in equity, and this court, after determining that such action was proper by the court below, had only to consider the question as to the propriety of dismissing the bill in equity, the parties having elected to abandon the common-law proceedings. It is true this court, in that case, suggests that the heirs of Emma Jane Cleveland should have prosecuted the appeal within one year after her death, the appeal being from an order admitting her father’s will to probate fifteen years subsequent to his death.

Section 22 of the Civil Code (old) could not have applied, for the reason stated in the original opinion in this case, and a careful reading of the case referred to must impress the mind with the fact that no opinion was really expressed on the question involved here. The whole proceedings in regard to the contest and probate of wills, and the remedies by appeal, etc., are unlike appeals in ordinary cases, particularly as to time; and when the law-maker undertook to legislate on the rights of infants, and to make a saving in their favor, no right was reserved after the lapse of five years from the date of the probate, securing the right of appeal on the part of infants, from the county to the circuit court. On the contrary, when the very question was made the subject of legislation and embraced within the statute, the legislature no doubt purposely omitted making any saving other than the right to appeal within the five years. The right.to file a petition in equity carries with it all the rights incidental to the prosecution of such an action, and such rights must be regarded as a part of the statute; still, when the judgment of the circuit court is permitted to be assailed, the saving, in favor of infants is reserved. The right to proceed in equity is expressly provided by the statute, while the right to appeal after the five years is withheld, or in fact not given. The attention of the law-maker must have been called to this question when legislating upon the saving clause in favor of infants after the case had reached the circuit court. Five years was deemed ample time, whether the rights of adults or infants were involved, in which to appeal to the circuit court, and this court will not imply a saving where the legislative intent must have been otherwise, or, when legislating on the very subject, they have omitted to insert any such clause with reference to appeals from the county court.

Petition overruled.  