
    Henry S. Holt et al. v. Frederick Lamb et al.
    1. Where land is devised to a tenant for life, with direction that at his death it be sold, and the proceeds divided among his children, the children may elect at his death to take the land itself, or to have it sold for their benefit.
    
      2. The right or estate of such children does Hot accrue until the death of the tenant for life, although his estate may be determined during his lifetime. *3. The statute of limitations does not begin to run against the children, in such case, till after the death of the tenant for life, and no possession prior to his death will bar or affect their right or estate.
    4. A proceeding to contest a will, under the act of February 11,1824, binds only the parties to such proceeding; and, therefore, although such parties, as between themselves, are estopped from sotting up said will, when it has been once set aside by such proceeding, yet, as to all other persons in interest, it is to be regarded as a still subsisting will, and their rights stand wholly unaffected by the proceeding.
    G. It is error in the court to proceed by mere decree, and without the intervention of a jury, to set aside the will in such case.
    Error to the district court of Fairfield county.
    Sarah Stevenson died testate in September, 1823, and her will contains the following clause:
    “I give and bequeath unto my brother, George Stevenson, of Franklin county, during his natural life, all that tract or parcel of land, supposed to be 104 acres, more or less, which was once owned by William. Gardner, and deeded to me by my father, Daniel Stevenson, it being in the west end of section No. 2, township 15, range 18. And after the decease of the aforesaid George Stevenson, then my will and desire is, that the aforesaid described tract of land shall be sold, and equally divided between said George Stevenson’s four daughters, viz: Ruth, Sarah, Rebecca, and Mary. And I further give and bequeath unto the aforesaid Ruth, Sarah, Rebecca, and Mary Stevenson, my bed and bedding, and all my wearing apparel, to be equally divided between the before-mentioned daughters.”
    This will was duly admitted to probate, and recorded in the court of common pleas of Fairfield county, where the testatrix died, in December, 1824.
    In November, 1825, John Stevenson and others, brothers and sisters and heirs at law of the testatrix, filed in said court their bill in chancery against George and Daniel Stevenson, the other brothers and heirs at law, to contest the validity of said will, alleging that the same was not executed agreeably to law, and that the testatrix was of unsound mind at the time of its execution. The said four daughters of George Stevenson were not made parties to this bill.
    
      George filed an answer to the bill, averring the due execution of the will, and the capacity of the testatrix to make it. Daniel was in default for answer.
    *At the October term, 1826, the court rendered a decree dismissing the bill of complaint.
    Erom this decree an appeal was taken to the Supreme Court of Fairfield county, where, without making up any issue fór a jury, and without the intervention of a jury, the court, at its November term, 1826, finally decreed that said will should “ be set aside and held for naught, the same not having been executed according to law.”
    In March, 1827, in a proceeding in partition between the said brothers and sisters of the testatrix, and to which the said daughters of George were not made parties, the said court of common pleas ordered the land to be sold. Under this order the land was sold to Jonas Friend, and duly conveyed to him by the sheriff in June, 1827.
    The defendant, Lamb, who, prior to 1840, by warranty deed, acquired, all the title of Friend, went into possession of the land on the 12th of February, 1840, and has ever since been in actual adverse possession, claiming to be the owner thereof in fee, under and by virtue of said sheriff’s deed to Friend, and subsequent deeds from Friend to him.
    George Stevenson died in October, 1863, and the plaintiffs — who are the said four daughters of George — with their husbands, in July, 1864, brought their original action in the court of common pleas of Fairfield county, against said Lamb and the heirs at law of the testatrix, the present defendants, setting forth th'e execution and probate of the will; alleging the death of George; asking to have the land sold, and the proceeds thereof divided among them, agreeably to the provisions of the will; and praying that Lamb might be decreed to give up possession to the purchaser.
    To this action Lamb set up, in his answer, nominally, seven different grounds of defense:
    1. That the cause of action did not accrue within twenty-one years.
    2. • That the will was not duly probated. This defense was afterward abandoned.
    3. The decree of the court annulling the will.
    4. The partition proceeding, and possession thereunder.
    
      *5. Adverse possession for more than twenty-one years.
    6. A denial that plaintiffs have any right or interest in the land.
    7. An allegation that Lamb has a good title thereto, with a prayer to be quieted' in his title and possession.
    The plaintiffs demurred to the 2d, 4th, and 7th defenses, and to the claim for relief.
    To the 1st defense, they replied that the cause of action did accrue within twenty-one years, to wit: upon the death of George Stevenson in October, 1863.
    To the 3d defense, they replied that the decree annulling the will is void: 1. Because plaintiffs were not parties in the cause; and, 2. Because there was no verdict of a jury therein.
    To the 5th defense, they replied that Lamb holds his title under the purchaser at the partition sale, and therefore under the heirs of the testatrix.
    The defendant, Lamb, demurred to the replies to the 3d and 5th defenses.
    The case was tried in the common pleas, at the June term, 1865, and taken thence by appeal to the district court. At the final hearing in the district court, the case was submitted to said court, to be heard at the same time upon the issues of fact and of law, and a bill of exceptions sets forth all the evidence. This evidence consisted of proof of defendant Lamb’s said adverse possession, and transcripts of the records of said proceedings in chancery and in partition.
    After hearing the testimony, the court held that the 3d ground of defense — that which sets up the nullification of the will by the proceeding in chancery — was a good defense, and that the reply thereto — which alleges that plaintiffs were not parties to said proceeding, and that there was no verdict of a jury in said cause — was insufficient. The court therefore sustained the demurrer to said reply, and dismissed the plaintiffs’ petition, with a decree quieting the title and possession of Lamb.
    And now, to reverse this judgment of the district court, a petition in error is filed here, alleging for error that the court sustained said demurrer, and rendered judgment in favor of UQamb, when the judgment should have been for the plaintiffs.
    
      Hunter & Daugherty, for plaintiffs in error:
    1. The decree of the Supreme Court of Fairfield county, in the chancery proceeding, rendered in avoidance of the will, is not binding upon the plaintiffs in error, bnt is void, because: 1. They were not made parties defendants in that proceeding; and, 2. No issue of devisavit vel non was made and submitted to a jury, and no-verdict of a jury rendered pronouncing the will invalid, as required, by the statute.
    (1.) The plaintiffs in error were necessary parties in that proceeding, and could and should have been brought in by subpena or-publication. Sec. 18, act of February 26, 1824 (2 Chase, 1305); Story’s Eq. Pl., secs. 72, 75, 76a, 137 ; 1 Daniel’s Ch. Pr. 292, 293 ; Cockburn v. Thompson, 16 Ves. 325, 326 ; 1 Hare, 530, 624, 626; 2 Hare, 543-546; Childs v. Childs et al., 10 Ohio St. 339; Williamson et al. v. Field’s Ex’rs, etc., 2 Sandf. Ch. 533.
    George .Stevenson, the executor and tenant for life, did not represent the interests of the plaintiffs. He was one of the heirs at law, and as such, interested in the inheritance, adversely to the-plaintiffs.
    The interest of these plaintiffs was future, to arise on the termination of the life estate; but it was fixed, and they were in esse, and within the jurisdiction of the court, and their interest was vested. 2 Sandf. Ch. 551; 1 Daniel’s Ch. Pl. and Prac. 308, 309.
    These plaintiffs, if the will were sustained, were entitled to the-inheritance, either to be sold for their benefit, as provided by the will, or, at their election, they to retain the land specifically. Craig v. Leslie, 3 Wheat. 563; 1 Roper on Leg. 548, note 4; Story’s Eq., sec. 1214; 1 Kent’s Com. 259, note.
    The law upon the question of the jurisdiction of the court, in this case, to inquire, collaterally, into the exercise of jurisdiction by the Supreme Court in rendering the decree in question, is well settled upon authority, founded upon sound principles of justice and reason. Elliott et al. v. Piersol et al., 1 Peters, 340; Lessee of Hickey et al. v. Stewart et al., 3 How. 750; *Dychman v. The Mayor of New York, 1 Seld. 434; Slocum v. Wheeler et al., 1 Conn. 429.
    The record, in such cases, must show the jurisdictional facts ; or-they must be directly averred, or arise by necessary inference from the record. Here, the very contrary is manifest from the record; and the averment, that the proceedings were had “ agreeably to law,” if that were sufficient, is not sustained by proof of any sort. Code, sec. 120; Ruckman v. Cowell, 1 Comst. 507; Richmond v. Richmond, 10 Yerger, 303; Hare v. Bryant, 7 J. J. Marsh. 375 ; Hugh’s case, 1 Bland. 46 ; Hepburn’s case, 3 Bland. 95; Sheldon v. Wright, 1 Seld. 497, 516; Berden v. Fitch, 15 Johns. 141; Mills v. Martin, 19 Johns. 33; Lathorn v. Edgerton, 9 Conn. 299; Boswell’s Lessee v. Otis et al., 9 How. 350; Hollingworths v. Barbour et al., 4 Peters, 466, 472; Hunt et al. v. Wickliffe, 2 Peters, 201. The last case is precisely in point on several questions. See, also, 12 Wend. 9, 11; 13 Wend. 405; 4 Cowen, 457-459 ; 3 Yerger, 395; 1 Penning, 151, 153; Thatcher v. Powell, 6 Wheat. 119; Bloom v. Burdick, 1 Hill, 141; Atkins v. Kinman, 20 Wend. 241; Jackson v. Shepard, 7 Cowen, 88; Jackson v. Esty, 7 Wend. 148.
    The proceeding in the Supreme Court, in which the will and probate were decreed to be null and void, was not a proceeding in rem, but was required by the statute to be a proceeding between parties*
    It may be true that the exercise of the jurisdiction invoked, was in respect to a thing — the will — and that no judgment or decree against the parties interested in personam, was or could be rendered, yet the idea that a court may, in such a proceeding, exercise its jurisdiction without notice to the parties interested, is quite a fallacy. Lessee of Moore et al. v. Starks, 1 Ohio St. 369; Hammond v. Davenport et al., 16 Ohio St. 177; Boswell’s Lessee v. Otis et al., 9 How. 350.
    (2.) It can hardly be necessary to argue the point, that upon an appeal of a case, contesting the validity of a will, to the Supreme Court, the provisions of section 18 (2 Chase, 1305), as to the mode of trial of the issue, apply and limit the power of the Supreme Court precisely as they do the court of common pleas, before the appeal.
    *The Supreme Court had no power to decree the will to be void without the verdict of a jury. The jurisdiction to decide is vested in the jury. See Cooch v. Cooch, 18 Ohio, 150; Walker v. Walker, 14 Ohio St. 176.
    We are bound to take notice of the statute, which was a general law conferring exclusive power in such cases to adjudicate by a jury. Am. Notes in 1 Smith’s Lead. Cases, 832-835.
    This usurpation, and the omission to make the plaintiffs parties, were not mere irregularities and only examinable as matters of. error; but they go to the jurisdiction of the court.
    The making of the issue and finding of the jury, and the relation of the plaintiffs as parties in the cause, will not be presumed. 1 Curwen’s Stat., title, Interpretation of Statutes, page 6, and cases cited in note 1; see, also, authorities cited above, passim, and Code, see. 120.
    Most of the questions of jurisdiction now presented for consideration arose in Adams’ Lessee v. Jeffries, 12 Ohio, 250, 272, et seq. See, also, notes to Crepps v. Durden, 1 Smith’s Lead. Cases, 800-848 ; 2 Phil. on Ev. (4 Am. ed.), Cowen and Hill’s Notes, 18-139; Callen v. Ellison, 13 Ohio St. 452-455.
    2. As to the statute of limitations :
    The will and probate, as alleged in the petition, are not controverted, and are therefore admitted for all purposes of this issue; also the fact that George Stevenson survived till October, 1863, and then died. Hence, the lapse of time and possession do not bar the plaintiffs’ right of action, which, according to the will, did not accrue till the death of the tenant for life. The lands were to be sold after the death of George Stevenson, and not after the termination of the life estate. Therefore, although the allegation of the answer is, that the purchaser, Friend, and those claiming under him, have been in possession, claiming title adversely to the plaintiffs, thirty-seven years; yet the admission is, that their sole source of title is from the heirs at law of the testatrix, from whom the plaintiffs claim as devisees. Hence, their title is not adverse to that of the plaintiffs, if the validity of the will be conceded, which it is,- so far as this ground of defense is ^concerned. They all claim under the same common source of title — the testatrix; and the question is, which of them, the plaintiffs or the defendant, has the better title derived from that source? Undoubtedly, adverse possession for thirty-seven years by the defendant, and those under whom he claims, would give him a perfect legal title against the plaintiffs, but for one reason, namely, that their right of action against him did not accrue till within one year before they commenced their action, and the statutory bar is twenty-one years.
    But it has been argued, that the life estate (under the will) of George Stevenson was -forfeited, by alienation by him in fee, moré, than twenty-one years before suit brought, and that a right of action accrued to the plaintiffs upon the happening of the forfeiture. The alleged alienation was by virtue of the proceedings and sale in partition in 1827. Smith v. Pratt and Barber, 13 Ohio, 550. The intervening time is long enough to work a bar, if, by the facts, a forfeiture were produced, and if, admitting the forfeiture, that subjected the plaintiffs to the necessity to bring their action, in order to prevent the statute of limitations from running against them. But the affirmative of neither proposition can be sustained. 4 Kent’s Com. 92, 93, 492, 493. It will be found also, upon the same references, that, according to the common-law rule, no forfeiture accrued till entry by the remainderman.
    
      Martin & McNeill, for defendant Lamb:
    1. The probate of the will of Sarah Stevenson was annulled by the decree of the Supreme Court of Fairfield county.
    
      First. As to the plaintiffs not being parties in the case in which the decree was rendered:
    (1.) They were not required to be made parties by the statute. The statute does not prescribe who shall be parties. The provision on the subject is, simply, that “ persons interested may, within two years, by bill in chancery, contest the validity of the will.” 2 Chase,. 1305, sec. 18. This was done.
    (2.) The plaintiffs were parties by representation of George Stevenson, the executor, who appeared and filed an answer in the cause, and defended the interests of plaintiffs. The %noney provided for them was a simple pecuniary legacy. Craig v. Leslie, 3 Wheat. 563; Ferguson et ux. v. Stuart’s Ex’rs, 14 Ohio, 140; Brewster v. Benedict, 14 Ohio, 368.
    (3.) The suit was a proceeding in rem, and, therefore, the plaintiffs were not necessary parties. Holman et ux. v. Riddle, 8 Ohio St. 391; Dayton on Surrogates, 188, 189; Bogardus et al. v. Clark et al., 4 Paige Ch. 623.
    But assuming that in consequence of the employment, in the statute, of the terms “bill in chancery,” the plaintiffs should have been made parties, the effect of the omission is not to render the decree annulling the will void, but only irregular and erroneous, and it can not be collaterally impeached. Lessee of Paine v. Mooreland, 15 Ohio, 444, 445; Lessee of Mitchell v. Eyster, 7 Ohio, 259; Sheldon v. Newton, 3 Ohio St. 504; Benson v. Cilley et al., 8 Ohio St. 604; Robb v. Irwin, 15 Ohio, 689; Lewis v. Lewis’ Adm’r, 15 Ohio, 715; Snively v. Lowe, 18 Ohio, 368; Meese et ux. v. Keefe et al., 10 Ohio, 362; Trimble et al. v. Longworth et al., 13 Ohio St. 443.
    (4.) If the plaintiffs were proper parties, they could have applied to the court and been made parties. Or they could have instituted proceedings in the same court to impeach the decree for irregularity,, or in an appellate court to reverse it for error. Bogardus et al. v. Clark et al., supra.
    
    (5.) The plaintiffs may not have been within the jurisdiction of' the court and subject to its process; and the court, for good reasons,, may have declined to order them brought in. Story’s Eq. Pl. 781. After this great lapse of time it is to be presumed the court did its-duty.
    
      Second. In regard to the objection, that the decree was not rendered in pursuance to a verdict of a jury:
    (1.) The statute' did not require a jury to be impaneled in the-Supreme Court. The provision relating to a trial of the issue by jury, referred to the common pleas alone. Chase, 1307, sec. 18. See sec. 24, S. & C. 1619.
    (2.) The omission to call a jury was, at most, an irregularity or error. Dixon v. Cincinnati, 14 Ohio, 240.
    The views we have already, under another head of the argument, presented relating to the acquisition of jurisdiction, apply to this» objection.
    *¥e refer to the following additional authorities, which support the general views we have advanced: Matthews v. Thompson, 3 Ohio, 272; Weyer v. Zane, 3 Ohio, 309; Morgan v. Burnet, 18 Ohio, 535; Bigelow v. Bigelow, 4 Ohio, 138; Buell v. Cross, 4 Ohio, 327 ; Adams v. Jeffries, 12 Ohio, 253; Cochran v. Loring, 17 Ohio, 409; Newman v. Cincinnati, 18 Ohio, 328.
    As to the claim of plaintiffs, that the contest case was a case of' special jurisdiction, and that the same rigorous rules are to be applied to its record and to proceedings founded upon it, as to-courts of inferior and limited jurisdiction, see Shelden v. Newton,. supra, where the true doctrine is laid down.
    2. The statute of limitations: Whether the plaintiffs are bound-by the decree or not, it is not disputed that as to George Stevenson,, the tenant for life and all other parties to the suit, the decree is binding. They are precluded from setting up any claim under the will or its probate. Hence, the life estate was extinguished. It was entirely lost, as if he had died simultaneously with the testatrix, or had been absolutely incapable to take. The estate of the plaintiffs being the entire beneficial interest in the nature of a remainder, vested at once on the rendition of the decree in November, 1826, more than thirty-seven years before the commencement of their suit. Then they had a right to demand an execution of the trust or take the land. 2 Washburn on Real Prop. 692 ; Hill on Trustees (3 Am. ed.), 201, Am. note 3; Yeaton v. Roberts et al., 8 Foster, 459 ; 2 Redf. Law of Wills, 442, et seq.; Thompson v. Green, 4 Ohio St. 227; Nash’s Pl. & Pr. 289.
    3. As to the partition proceedings: If the will was wholly invalidated by the decree, the full title to the land vested in the heirs at law of the testatrix, and was transmitted by the sheriff’s deed to the purchaser at the judicial sale. If, however, the plaintiffs were not bound by the decree (the heirs at law, including George, being bound), the sheriff’s deed imparted no title or estate to the purchaser. For the -heirs at law would, on that hypothesis, have been invested with nothing but the naked title. And the purchaser and those claiming under him would hold the estate adverse to the plaintiffs. Tabler v. Wiseman, 2 Ohio St. 207.
    *As to adverse possession, see Ang. on Lim., sec. 390, et seq.
   Welch, J.

We can not regard the bill of exceptions. No motion for a new trial was made below, nor did the court pass upon any issue of fact. The case can not, therefore, be reviewed on the facts. This is immaterial, however, as there are no real issues of fact made by the pleadings, and they admit all that is set out in the bill of exceptions; the replies, so called, being mere conclusions of law, or repetitions of matter admitted in the answer. The case is made in the pleadings, and we can look to them alone.

The plaintiffs claim under a will, duly probated, and clearly entitling them to _ have this land sold for their benefit, unless their right of action is barred by the matters set up in defense. These matters, though nominally seven in number, are really but two: 1. The decree setting aside the will; 2. The twenty-one years’ possession of Lamb. The first of these defenses only was passed upon by the district court. If, however, we should be of opinion that the court erred in sustaining that defense, before we can hold the ei-ror to be prejudicial to the plaintiffs, we must go further, and find the second defense also to be insufficient. Because, if the record shows any good defense, the plaintiffs have not been injured. Whether it does show any such defense is the question to be con.sidored. Was the decree a good defense? And, if it was not, have 4ho plaintiffs lost their rights by the long-continued possession?

The proceeding to contest the will was governed by the act relating to wills,” of the 11th February, 1824. Chase Stat 1305. It is admitted that by the provisions of that act the will, whenever probated, became, and forever remained a valid will, binding upon all persons, until set aside agreeably to the provisions of the 18th section of the act. That section is as follows:

“ Seo. 18. That if any person interested shall, within two years after probate had, appear, and by bill in chancery contest the validity of the will, an issue shall be made up, whether the writing produced be the last will of the testator or not, which shall be tried by a jury, whose verdict shall be final ^between the parties, saving to the court the power of granting a new trial, as in other cases; but if no person appear in that time, the probate shall be forever binding, saving, also, to infants, married women,” etc., “the like period after the removal of their respective disabilities.”

Was the will set aside agreeably to the requirements of this section ? The proceeding for that purpose was commenced within the time named, “two years;” it was in the prescribed form, “by bill in chancery;” and by the proper party, “a person interested.” But it is objected that there was no verdict of a jury, and that without such verdict the court could not rightfully set the will aside by mere decree; or, if the verdict of a jury was not necessary, then it is objected that the decree only binds those who were parties to the proceeding. We think these objections are both well taken. The statute declares that the “ verdict shall be final between the parties.” This language can not easily be misunderstood. Labored arguments, as to the distinctions between actions in rem and actions in personam, and between courts of general and courts of special jurisdiction, shed but little light on these plain words. The statute makes nothing final but a “verdict,” and it makes that verdict final only “ between the parties.” Until such verdict is rendered, agreeably to the statute, the probate of the will is a finality. When so rendered, the verdict, and not the decree, becomes a finality. That is to say, the verdict becomes conclusive evidence of its own truth between the parties to the proceeding. The verdict of a jury is the only instrumentality given by which to invalidate or set aside the probate. Whether the omission of a jury in such case renders the decree void, or merely voidable by direct proceeding to reverse it, need not now to be determined. That it would at least render it voidable, was expressly decided in Walker v. Walker, 14 Ohio St. 157. But whatever effect may be given to the decree — or to the verdict of a jury in such case — we have no hesitation in saying that that effect must be confined to “ the parties ” in the cause. The words “the parties,” in the section quoted, can have no other legitimate meaning than that of parties to the proceeding. *This is their primary legal meaning, and that such is their import here is quite obvious from their being used in connection with the subject of a “bill in chancery,” which, of itself, implies proper parties. That meaning is made still more obvious from the fact that to give-the words any other meaning would do injustice by depriving persons in interest of a day in court. The meaning can not be parties in interest, because such had been spoken of before as “ persons interested.” And 'in the subsequent clause, where the effect of the probate is declared, it is said it “ shall be forever binding,” without naming any parties upon whom it is to be so binding. If the same meaning was intended in both places, why were different forms of expression employed? Why use the words “between the parties ” in the one case, and omit them in the other ? It seems to us quite plain that it was because the intention was to express what, in fact, ought to be implied in all proceedings in “ chancery,” that none but “ the parties ” to the proceeding were to be bound thereby. Indeed, the counsel for Lamb seem to rest thoir whole defense upon an implication arising from the fact that the proceeding was “in chancery.” It is alone from this fact that they imply the power of the court to render a decree. That implication, however, can be no stronger than the implication that only parties are to be bound by the decree. The defendant is in this dilemma: if the proceeding was not in chancery, then there was no power to render the decree, and the statute, not having been strictly pursued, the whole proceeding is void; but if the proceeding was in chancery, so that we may imply a power to render the decree, then it binds none but parties. So that, whether the proceeding was in chancery or in rem, the plaintiffs are not bound by the decree.

Is there anything in the other defense, twenty-one years adverse possession ? The argument is that the right of the plaintiffs is in in the nature of a remainder, and therefore accrued immediately upon the determination of the life estate of George, by the rendition of the decree. If this be true, the statute of limitation is well pleaded. But if their right first accrued upon the death of George Stevenson, it will hardly be contended that the statute is any bar. Nor can it be seriously ^contended that tbeir rights could, in that case, be in any manner affected by an adverse possession during the life of George Stevenson. Such possession would he either in the right of George Stevenson, or it would be an ouster of him, and could only affect the life estate.

Conceding then that the decree avoided the will as to George 'Stevenson, and thereby determined his life estate, hut left the will in full force as to the plaintiffs, did the right of the latter immediately accrue? We answer in the negative. Undoubtedly the law of remainder is, that it begins as soon as the life estate is at an end, even though it be in the lifetime of the tenant for life. But this is no remainder. It is an equitable right to have the land sold, or, at their election, to have the land itself, upon the death of George Stevenson. It was not what remained of the estate after carving out a particular estate, but an estate or right to commence upon the happening of a particular event, which might, or might not he coincident with the determination of the particular estate. The plaintiffs’ right, therefore, never accrued till 1863, the date of ■George’s death.

It seems to me that there is another answer to this defense, to be found in the doctrine of the mutuality of estoppels. The decree setting aside the will, if binding at all, was binding only “ between the partiesand it binds those parties by way of estoppel. Although the will may be in fact a lawful, valid will, the parties to the decree are estopped by it from asse?'ting or proving it to be such will. But the plaintiffs are not so estopped. As to them, it is a valid and subsisting will. They are still estopped by the probate from denying that it is such will. It is to them as though the chancery case had never been commenced. Their rights stand wholly unaffected by the proceeding. As they could lose nothing by it, so they could gain nothing by it. If George’s life estate fell by that proceeding, it fell into other hands than theirs — it fell, by -estoppel, into the hands of the other “ parties ” to the proceeding — the heirs at law of the testatrix. Had the plaintiffs sought to recover the land during the lifetime of George Stevenson, they must have asserted their claim to the remainder under the will, and their claim to the life estate in avoidance *of the will. They would have had to plead that there was a will, and that there was not a will, in the same action. This no party is allowed to do. George could as well, in such an action, have estopped them from denying the will, as they could have estopped him from setting it up. As between them and him, the only mutual estoppel is found in the probate of the will, which, being a proceeding in rem, binds all parties in interest. As between George and the heirs, he is estopped by the proceeding in chancery from setting up the will, and is compelled to admit, that whatever the will attempted to give to him has descended to them, and thus his life estate has passed into their hands, by estoppel, and not into the hands of the plaintiffs.

We are of opinion, therefore, that the district court erred to the plaintiffs’ prejudice in sustaining said demurrer, and in rendering judgment against the plaintiffs.

Judgment reversed, and cause remanded for further proceedings.

Day, C. J., and White, Brinkerhoff, and Scott, JJ., concurred.  