
    *Wills v. Spraggins.
    January Term, 1847,
    Richmond.
    (Absent Daniel, J.)
    Wills — Probat—Conciusiveness ot Judgment — Infant Legatee. — The sentence of a Court of Prohat fairly obtained and pronounced upon the merits, by which a paper propounded as a will by the nominated executor, is rejected, in a proceeding in which some of the next of bin. interested to defeat it, are parties defendants, is conclusively binding upon a legatee in said paper, though he was an infant at the time, and no party to the proceeding. And the paper cannot be again propounded by the legatee.
    Brooks Baker, of the county of Charlotte, died in 1826, leaving a large estate, real and personal, and leaving his widow, and his daughter Mrs. Wills, the wife of James Wills, and four infant children of a deceased daughter Mrs. Spraggins, the wife of Thomas L. Spraggins, as his heirs and next of kin.
    At the December term 1826 of the Superior Court of Daw for the county of Charlotte, a writing, purporting to be the last will and testament of Brooks Baker deceased, dated the 4th of August 1821, was propounded for probat by Thomas L. Spraggins. This paper was offered as the olograph will of Brooks Baker. It is written on the back of an old letter; is very inaccurately written and spelled, and is without any punctuation ; and there is difficulty in ascertaining its meaning in some respects. By it he confirms to James Wills and wife, the slaves he had given them. He gives to William B. Wills, the only child of Mrs. Wills, a negro woman by name, and her increase, and 5000 dollars. He makes a like provision for any other child Mrs. Wills,may have; and concludes, “the balance of my estate to the children of Eliza (Mrs. Spraggins) my daughter after leaving my wife Elizabeth Baker a *sufficiency not exceeding her third of my estate under the ‘management of Thomas L. Spraggins. ”
    Wills and wife appeared by counsel and opposed the admission of the paper to pro-bat; and on their motion, the cause was continued until the next term of the Court; when the motion was taken up, and after a trial of three days, and the examination of a great number of witnesses, the Court refused to admit the paper to probat as the will of Brooks Baker. Erom this judgment of the Court rejecting the paper, Spraggins took an appeal to this Court, and all the evidence was spread upon the record.
    After the appeal had been brought into this Court, viz. in 1828, Spraggins and Wills compromised the case; and the appeal was dismissed by Spraggins. By this compromise, Wills was to receive the negro woman, which, by the paper propounded as Brooks Baker’s will, was given to his son William B. Wills; William B. Wills, who was then an infant, was to have a negro boy Lewis; two of the children of Sprag-gins were each to have a negro; and the balance of the personal estate was divided, one third to Wills and wife, and the remaining two thirds to the four children of Spraggins: and the real estate was divided between the same parties, nearly in the same proportion; so that William B. Wills received no part of the estate except the one slave.
    After the compromise, and the dismissal of the appeal in the Court of Appeals, a suit was brought in the County Court of Charlotte for a division of the estate of Brooks Baker, according to the compromise ; and the division was made: though for some reason unexplained, the cause has. been ever since continued on the docket.
    William B. Wills came of age about 1838, and in February 1844, he issued a summons to Thomas L. Spraggins and his four children, and to Mrs. Wills, James Wills being then dead, under the act of 1838, for the ^'purpose of having the paper, which had been offered to the Court for probat as the will of Brooks Baker and rejected, again propounded for probat. The petition was filed in the superior Court of Charlotte county, but the Judge presiding in that Court having been the counsel of Spraggins in the first contest, sent the case to the Superior Court of Campbell county. There William B. Wills filed an amended petition.
    The grounds on which the petitioner asked that the paper should be again propounded for probat are: That at the time it was before offered for probat he was an infant; and was no party to the proceeding; and was wholly unrepresented. That Sprag-gins was not appointed executor by the paper, and did not propound it as executor, but in his own name; and that he was not aided by any legatee in the will. That both he and James Wills were interested to defeat it. That the appeal had been dismissed by a collusive and fraudulent agreement between Spraggins and James Wills, by which the rights of the petitioner had been wholly ' disregarded. That he had discovered other material evidence which was not before the Court on the former hearing, and the purport of which he states. And that he had been prevented from earlier moving that the said paper might be again propounded, by his inability to pay the expenses which would attend it.
    Thomas X,. Spraggins and his children, filed their answer to the petition. They insist that the sentence pronounced against the paper was upon an examination of numerous witnesses on both sides, and full argument of counsel, and after every exertion had been used by Thomas Iy. Sprag-gins to procure all the evidence which in his opinion would establish the said paper as the will of Brooks Baker. They say that Spraggins was the nominated executor in that paper; and that he had no interest in establishing or defeating it. They deny all fraud or collusion on the part of Spraggins, either in the ^conduct of the suit, or making the compromise. They say that the new evidence stated by the petitioner is of a similar kind to some of that which was before the Court on the motion to propound the will. And they object that the petitioner having delayed more than five years after coming of age to ask that the will should be propounded, the proceeding is now barred.
    On the hearing of the motion; the record of the first case, w.ith all the testimony then taken, was introduced as evidence, and some witnesses were examined as to the paper, though their testimony did alter the aspect of the case. Spraggins also introduced evidence to shew that he had faithfully exerted himself to procure the probat of the paper; and the evidence left no doubt on that point. Thereupon the Court overruled the motion to repropound the paper as the will of Brooks Baker, and dismissed the petition; and the petitioner having excepted to the opinion of the Court, and embraced all the evidence in the cause in his exception, applied to this Court for a super-sedeas, which was allowed.
    The cause was argued both orally and by printed notes, by Reed and Robinson, for the appellant, and Stanard, Bouldin and G. N. Johnson, for the appellees. The argument embraced various questions which were not considered by the Court, and all statement of which is therefore omitted. The question upon which the cause was decided here was the conclusiveness of the sentence of the Court of Probat on the first motion to propound the will.
    The Counsel for the appellant, premising that the admitted general rule is, that a judgment is only conclusive between the parties thereto and their privies; and that it was therefore incumbent on the other side to shew that this sentence of a Court of Probat is an exception to the rule, proceeded to enquire:
    *How far the sentence of a Court of exclusive jurisdiction is binding when introduced collaterally in another Court. They referred to Vandenheuvel v. U. S. Ins. Co., 2 John. Cas. 451, and Bourke v. Granberry, Gilm. 16, to shew that even in admiralty cases, where the proceeding is confessedly in rem, the Court of Errors in New York and this Court had refused to sustain the doctrine that the sentence is conclusive. But as the doctrine is held in the Courts of England and the United States, it is conceded that notice of the controversy is necessary; and the proceeding being in rem, notice is served upon the thing itself; and that-is notice to all who could assert any title to the thing: and they may thus be considered parties to the libel. But it is also conceded, that this is not notice to those who have not an interest in the thing which could be asserted in the Court of Admiralty; and they cannot therefore be considered parties. The Mary, 9 Cranch’s R. 126; Mankin v. Chandler & Co., 2 Brock. R. 125. In this last case it was held it was necessary to serve process on individuals ; and therefore the proceeding was not re-. garded as in rem. In the principal case there was nothing on which process was or could be served; and hence the proceeding was not properly speaking a proceeding in rem.
    They argued further, that there was a great difference between the effect of a sentence of a Court of exclusive jurisdiction, when introduced collaterally in a proceeding in another Court, and the effect of such sentence in the same Court which pronounced it, when that Court is called upon to vacate it. And for this they referred to The Mary, 9 Cranch’s R. 126; Murphy v. Mason, 5 Eng. Eccl. R. 376; Satterthwaite v. Satterthwaite, lid. 351; Uastv. Brown, 5 Id. 403; Tew v. Baines, Id. 289; Mansfield v., Shaw, 1 Id. 355; Carolus v. Bynch, 5 Id. 287; Baker v. Russell, Id. 350; Phillips v. Alcock, 6 Id. 51; Dew v. Clarke, 1 Cond. Eng. Ch. *R. 54; Rutherford v. Douglas, Id. 56 in note; Watkins v. Brent, 13 Id. 305; Raborg v. Hammond, 2 Har. & Gill 42; Brown, &c. v. Gibson, &c., 1 Nott & M’C. 326; M’Clenachan v. Commonwealth, 1 Rawle’s R. 357; Downing’s estate, 5 Watts’ R. 90; Gillespie’s estate 10 Id. 300.
    They then proceeded to enquire, at whose instance, and tinder what circumstances, the same Court may review its sentence; and they insisted it was not true as a general proposition, that the probat is binding on all the next of kin, though only a part are summoned or appear; though it may be true, under particular circumstances, as in the case of Newell v. Wicks, 1 Eng. Eccl. R. 239, where solemn proceedings had been had between parties in the same interest; and those not formally made parties were, in point of fact, privy to the whole proceedings, and had the means of intervening, if they had seen fit. But except in such cases, the next of kin are entitled to call for proof of the will of common right. Bell v. Armstrong, 2 Eng. Eccl. R. 13S. So a legatee in a will has equal right to call for proof of a codicil, which conflicts with his rights under the' will. Satter-thwaite v. Satterthwaite, 1 Eng. Eccl. R. 3S1; Pinucane v. Gayfere, Id. 425.
    ' Taking Spraggins to have propounded the will as executor, they referred to Williams v. Goude, 3 Eng. Eccl. R. 252, to shew that if the executor might repropound the will, the legatee may; and to Wood v. Medley, 3 Eng. Eccl. 275, in which it was held that an executor is not always barred from repropounding it; and to Trower v. Cox, 2 Eng. Eccl. R. 90, as authorizing legatees to repropound the will, where the executor would not be permitted to do it. And they insisted that the principle was, that the legatee was only bound by the act of the executor, where he could, and did fully represent the interest of the legatee. Sat-terthwaite v. Satterthwaite, supra. That he was not bound where *the case is so conducted, that there is no person before the Court who has an interest in supporting the paper. Redmill v. Red-mill, 1 Eng. Eccl. R. 427. And still more certainly is he not bound where there has been fraud or collusion by the executor to the prejudice of the legatee. Colvin v. Eraser, 3 Eng. Eccl. R. 48; Hayle v. Hasted, 6 Id. 313. And then they went into an examination of the evidence to prove that the case was brought within the influence of these principles.
    The counsel then went into an examination of the legislation of the State on the subject; and insisted it was never the intention of the Legislature to depart from that principle, of natural justice and of universal obligation, that a man shall not be bound by the ex parte proceedings of another, without being heard. And they insisted that when the statute vested in the County Courts the jurisdiction in testamentary causes, without prescribing the mode of proceeding, that jurisdiction was to be exercised according to the principles and modes of proceeding of the Ecclesiastical Courts; just as the Courts exercising common law and chancery jurisdiction looked to the common law and chancery courts of England to ascertain what were common law and what chancery causes, and how they were to be conducted. And such, they insisted, is the view taken in other States of the statutes creating their Probat Courts. Noyes v. Barber, 4 New Hamp. R. 406; G-ibs.on v. Lane, 9 Yerg. R. 475; Ralston v. Telfair, 1 Dev. & Batt. 482; Raborg v, Hammond, 2 Kar. & Gill 42; Brown v. Gibson, 1 Nott & M’C. 326. They insisted that it was plain from the language of the act of 1711, that the County Courts had the same power of revoking on citation, which the Ecclesiastical Courts possessed. And they argued to shew that the only change made in the mode of proceeding, was in relation to wills of lands, which did not affect wills of personaltjT; but that the power of the Court of Probat to repro-pound a will was left under the ^successive acts of 1744, 5 Hen. Stat. 231; 1748, Id. 454; 1785, 12 Id. 142; and of 1819, to be exercised as it might have been exercised by the Ecclesiastical Courts. And although the act of 1785 and 1819, gave the next of kin, who were no parties to the proceeding in the Court of Probat, a mode of contesting the validity of the will by a bill in chancery; and this may be considered as a substitute for the citation to set aside a will admitted to pro-bat, it cannot be a substitute for the right to propound a will where administration has been granted as on an intestacy, or to repropound it where it has been rejected; as it has no application to the cases.
    They then examined the Virginia authorities, and insisted there was nothing in them in conflict with the view of the statutes which they had presented. These were the opinion of Green, J., in Bagwell v. Elliott, 2 Rand. 190; and in Redford’s adm’r v. Peggy, 6 Rand. 316; Worsham v. Worsham, 5 Leigh 589: Duff v. Duff’s ex’ors, 3 Leigh 523; Dudleys v. Dudleys, Id. 436; Malone v. Hobbs, 1 Rob. R. 346; and Coal-ter &c. v. Bryan &c., 1 Gratt. 18.
    The counsel,- in conclusion, argued to shew, that a review of the sentence by the same Court which pronounced it, is not only the proper remedy, but is the only means of redress which a party in interest, not having notice of the proceeding, can have. Even if a person not a party on the record can appeal, the appeal could profit him nothing. He would not be present to have the testimony spread upon the record, and the appellate Court must of necessity affirm the sentence. But, indeed, a person not knowing of the sentence until after the term at which it was pronounced, could not appeal, because the appeal must be granted in Court, and by the Court during the term at which the judgment or sentence was pronounced. Thomson v. Evans, 6 Munf. 397; Morris v. Deshazo, 4 Rand. 460. After the term has passed without appeal, the case can only be taken *up by writ of error or supersedeas, and these writs can only be brought by parties or privies on the record. 2 Tidd’s Pr. 1189; Holcombe v. Purnell &c., cited in Sayre v. Grymes, 1 Hen. & Munf. 404; Wingfield v. Crenshaw, 3 Id. 245; Moss v. Moss’s adm’r, 4 Id. 293; Farneyhoug-h’s ex’ors v. Dickerson &c., 2 Rob. R. 582.
    When, then, there is no remedy in Virginia, in such a case as this, by appeal, writ of error or supersedeas, the argument is much stronger in favour of holding that the remedy in England, by citation, must be allowed here.
    The Counsel for the appellees, relied upon the judgment of the Court of Probat of 1827, as presenting a complete bar to the motion to repropound the paper then rejected. Admitting the general proposition that no one is bound by the proceedings of a Court of Justice, to which he is neither a party or privy, they insisted that there were exceptions to that rule as just and reasonable, and as well established as the rule itself. Of these were the class of cases known as judgments or proceedings operating in rem; in which the adjudications upon the subject matter are final, not only in the Courts in which they are pronounced, but in all other Courts in which the same question arises. 1 Stark. Evi. 227-8-9. And the functions of such a Court, the nature of the sentence pronounced by it, and of the subject of the sentence, require that its adjudications should be binding on all persons though neither parties or privies. Gelston v. Hoyt, 3 Wheat. R. 246.
    In these proceedings in rem, in contemplation of law, all persons interested are or may be parties to the suit; may intervene at anj' time, and on their own motion may enter themselves parties; and may appeal. And therefore it is held, that a final judgment operating: in rem can never again be brought in question, either in the same or any other Court, by the same or other parties. 1 Stark. Evi. 229; Gelston v. Hoyt, supra; *Greenl. Evi. 580, 586-7; Roscoe’s Evi. 104; Philip’s Evi. 346-7, Cowan & Hill’s edi. ; Starke v. Woodward, cited in Brown v. Gibson, 1 Nott & M’C. 326.
    They further argued, that the judgment of a Court of Probat, admitting a will to probat, or rejecting it, operates in rem, or is analogous to the proceeding in rem; and like other judgments in such cases, binds all the world. And they proceeded to trace the analogy between such judgments and judgments in rem, and referred to Coalter v. Bryan, 1 Gratt. 18; 1 Stark. Evi. 228, 230-31, and the notes; 3 Philip’s Evi. 863-4; and the opinion of Turnbull, J., stated in Greenl. Evi. 586; 1 Philip’s Evi. 343-4; Gelston v. Hoyt, 3 Wheat. R. 246; M’Pher-son v. Cunliff, 11 Serg. & Rawle 422; In the case of Wills’ will, 5 Eitt. R. 274.
    The counsel further insisted, that if the forms of proceeding in the Ecclesiastical Courts of England ever were in force in Virginia, which was at least doubtful, they ceased to be law as far back as 1711; and have not been the rules of our Courts since that time. And they referred to and examined the acts of 1711, 4 Hen. St. 12; of 1744, 5 Id. 231; of 1748, Id. 454; and of 1785, 12 Id. 142; to shew that the Legislature had provided fully for the probat of wills, both as to the mode of proceeding and the effect of the sentence, varying materially in many respects as to both, from the rules of the Ecclesiastical Courts. And they insisted, that by the terms of the act of 1711, as well as of the subsequent acts, the provisions thereof referred to wills of personal as well as wills of real estate. They further insisted, that the provisions of these statutes, as to the force and effect of the judgment of the Court, were equally applicable to a judgment against the paper propounded, as to a judgment admitting the paper to probat. And they deduced from the statute the following propositions:
    1st. That the judgments of our Courts of Probat, whether obtained ex parte or not, are forever binding on *all the world, except so far as their effect may be qualified by express provision of-the statutes.
    2d. That the effect of a judgment of a Court of Probat, refusing to admit to pro-bat a paper propounded as a will, has never been qualified by the provisions of any statute; and that such judgment can in no case be reviewed, except by appeal.
    3d. That the judgments of such Courts, whether admitting a will to probat or refusing it, are forever binding on all the world in the same Courts, as Courts of original probat jurisdiction, without qualification of law; but where the will has been admitted to probat, the question of probat may be considered a second time, before a different tribunal. In such case, “the final probat is shifted from the Court of original probat jurisdiction to the Court of Chancery, there to be exercised by the intervention of a jury.
    The counsel then proceeded to examine the cases in the Courts of Virginia bearing on the subject; and insisted that although the question had never been expressly adjudged, yet so far as the opinions of the Judges had been intimated, they sustained the foregoing views. They referred to the opinion of Green, J., In Bagwell v. Elliott,
    2 Rand. 190; of Tucker, P., in Duff v. Duff’s ex’ors, 3 Leigh 523; and- in Dudleys v. Dudleys, Id. 436; of Baldwin, J., in Malone v. Hobbs, 1 Rob. R. 346; and in Coalter v. Bryan, 1 Gratt. 18.
    It was further insisted, that the judgment of the Superior Court of Charlotte of 1827, was final, according to the principles and forms of proceedings of the Ecclesiastical Courts of England. That the proceeding in that Court was in fact analogous to the proof in solemn form of the Ecclesiastical Courts. It was offered by the nominated executor, representing the widow who was a beneficiary under the will and not interested to oppose it, and a portion of the next of kin who were interested to sustain it. James Wills and wife, the *only next of kin interested to defeat it, made themselves parties defendants to the proceeding; and between these parties, thus representing the adverse interest, the question zealously contested, and the Court gave judgment against the paper. This judgment is binding and conclusive against all the world; but more especially against a legatee who is represented by and bound by the acts of the executor. 1 Wms. Ex’ors 192; 1 Lomax’s Ex’ors 97-8; Colvin v. Eraser, 3 Eng. Eccl. R. 48; Wood v. Medley, Id. 275; Newell v. Weeks, 1 Id. 239; Hayle v. Hasted, 6 Id. 313; Brown v. Gibson, 1 Nott & M’C. 327.
    It' was further insisted, that according to the well established rules of the Ecclesiastical Courts, a legatee can in no case propound a will, unless the executor shall himself refuse to do it. And he must cite the executor and call on him to propound the paper; and if he then refuses, the legatee must ask leave to propound it. The right to repropound, is therefore, in the executor, and there are cases in which he may do it; as in Fawcet v. Jones, 1 Eng. Eccl. R. 433, where the proceeding had been in common form. But it is not pretended that Spraggins could have propounded this paper; and as the legatee must claim his right to propound through the executor, he must be equally concluded.
    In this case, the next of kin are also bound by the former judgment. The only next of kin interested to defeat the will, were Wills and wife; and they were parties. The widow was informed of the proceeding; and the only other next of kin, were the children of Spraggins. They were the chief beneficiaries under the will, and have acquiesced in the judgment; and if they were disposed to disturb it, would have to do so, not as next of kin, but as legatees. As next of kin, their rights were fully secured. In such a case, next of kin not parties, but knowing of the proceeding, and being entitled if they choose to make themselves parties, *are bound by the judgment. Newell v. Weeks, 1 Eng. Eccl. R. 239; Richardson v. Claney; and Hoffman v. Norriss, &c. in note to Newell v. Weeks; 1 Wms. Ex’ors 193; 1 Bomax’ Ex’ors 98; Bell v. Armstrong, 2 Eng. Eccl. R. 139.
    The counsel further contended, that William B. Wills might have appealed from the judgment of 1827, though not a party on the record. That according to the judgments of the Ecclesiastical Courts of England, all persons interested in the questions before the Court, and aggrieved by the sentence, parties in interest though not parties on the record, are allowed to appeal from the sentence. Jones v. Bougitt, 1 Atk. R. 348. And this general rule of the Spiritual Courts applies to questions of probat. 1 Wms. Ex’ors 352. This is held under an English statute, 25 Hen. 8th, ch. 19, § 4, which gives the right of appeal “to parties grieved.” Our statute gives the right of appeal “to any person or persons feeling aggrieved” by the sentence.
    The cases cited on the other side were none of them testamentar}' cases, or on proceedings in rem, except Sayre v. Grymes; and in that case, the Court held, that Sayre had no interest in the question, and of course he could not have been aggrieved by the sentence. On the other hand, the Court was referred to Triplett’s ex’ors v. Jameson, 2 Munf. 242; Taver v. Taver, 9 Peters’ R. 174; and Croudson v. Eeonard, 4 Cranch’s R. 437.
    
      
      The cause was argued before his appointment.
    
    
      
       Wills — Probat—Conciusiveness of . — The admitting a will to probat is a judgment in rem, and where the order admitting it to probat is unreversed it is binding on all parties whether parties to the proceeding by which it was admitted to probat or not. Dower v. Church, 21 W. Va. 53, citing Wills v. Spraggins, 3 Gratt. 555. See also, citing the principal case upon this subject, foot-note to Parker v. Brown, 6 Gratt. 554: Schultz v. Schultz, 10 Gratt. 368 (see footnote); Robinsons v. Allen, 11 Gratt. 787; Ballow v. Hudson, 13 Gratt. 678, 682, and foot-note; Connolly v. Connolly, 32 Gratt. 664, 665 (see foot-note); foot-note to Norvell v. Lessueur, 33 Gratt. 223. See monographic note on “Judgments” appended to Smith v. Charlton, 7 Gratt. 425.
    
   BALDWIN, J.

It is easy to perceive that the final sentence of a Court of Probat, fairly obtained and pronounced upon the merits, by which a last will arid testament is established or rejected, ought to be conclusively binding, not only upon other tribunals, but in the same forum ; and that it would be an intolerable evil, if the controversy could be renewed, from time to time, at the pleasure of the same, or even of other parties. *Obvious considerations of justice and sound policy require that in a proceeding of so much publicity and notoriety, intended to sanction or condemn perpetually an important muniment of title; affecting various interests, original and derivative, which time only can fully develope; and determining, prospectively, channels of succession, powers of representation, arid classes of ownership; there should be, as far as practicable, uniformity, consistency, and finality. Such a proceeding becomes, to a great extent, a matter of public as well as of private interest; and both the general good and individual security prohibit that it should be, so far as can be avoided, in any wise uncertain, vacillating or precarious.

These principles arise out of the general nature of the subject: the application of them is of course to be regulated by the wisdom of the Courts in exercising a general probat jurisdiction, or that of the Legislature in conferring specific probat powers, and prescribing the modes of proceeding.

In Virginia, our statute law has given to certain Courts power to hear and determine all causes, matters, suits and controversies, testamentary, arising within their respective jurisdictions, and to examine and take the proof of wills and grant certificates thereof; and has moreover prescribed the manner and effect of such probat; and in doing so has departed in several particulars from the probat law of the English Ecclesiastical Courts. I need not trace the history of our legislation on this subject. It will be sufficient to notice its provisions, as settled by the act of 1785, and continued in the revisal of 1819.

The act of 1785 adopted from previous statutes a provision, unknown to the English probat law, and having an important bearing upon the proceedings of our probat jurisdictions. It required that probat should be had of wills of realty, as well as wills of personalty, by enactments common to both. The Ecclesiastical Courts, as *is well known, have jurisdiction only of wills of personalty, and regard the executor named as the only proper person to propound the will for probat, whether voluntarily, or upon the citation of others interested in the subject. He is the representative of the will, and of all interests created by it; and moreover the legal owner of the testator’s personal estate. It is therefore his right, and his duty, to obtain for the instrument the sanction prescribed by law. But it is quite otherwise in regard to the testator’s real estate. As respects that, the executor has no concern, and the Ec'clesiastical Courts no jurisdiction; and there is no probat forum known to the English law.

Now, when our statute required the pro-bat of all wills, whether of realty or personalty, without distinction, it could not, 'of course, without impropriety, contemplate the executor as the sole representative and propounder of the instrument; and accordingly we find that it has not done so, but has made it the duty of the Court to act upon the subject, whenever any will shall be exhibited for probat, without designating the authority by which it shall be propounded; and therefore leaving it to be propounded by any one interested in its establishment. It follows, that any will may be propounded, not only by the nominated executor, but by any legatee or devisee therein, who has an interest in establishing it, without regard to the nature of the property upon which it acts; and that such propounder, in common with other of a like interest, who may choose at any time to associate themselves with .him as parties, becomes the representative of the will for the purpose of its probat, and the representative of all others of a like interest, though ■not formal parties, and whether cognizant of, or without notice of the proceeding.

Another departure by our statute from the English probat law, is in respect to the distinction between the probat in' common form, and the probat in solemn form, *or per testes: the distinction is preserved in reference to the proceeding as being primary or final; but not in reference to the relative degree of proofs, or the citation of parties.

By the ecclesiastical law, the executor, in his discretion, may take probat in what is called common form; in which, where there is no controversy, no exactness of proof is required, and most generally no examination of witnesses, but only the oath of the executor; and in which no citation of the next of kin is necessary. But a probat in that form is only primary, and any one interested in invalidating the will may thereafter compel the executor to prove it in solemn form; in which case the widow and next of kin must be summoned, and full proof made by the examination of witnesses. But under our statute, the validity of the will must be established by full legal proofs, whether upon the primary or secondary probat, and the oath of the executor to the genuineness of the will, can never avail any thing, except as a part of his official qualification after the will has been admitted to probat.

These departures from the English probat law naturally led to others. There being in England no Court of Probat for wills of real estate, the validity of the instrument is necessarily to be determined in actions at common law, brought to recover the property; or, where the Court of Chancery obtains jurisdiction of the controversy, upon an issue of devisavit vel non, directed by that forum, if the heir at law demands it. But with us, the probat jurisdiction being extended to wills of realty, it became necessary, to preserve the jury trial in freehold controversies turning upon the validity of the instrument, to engraft it upon the probat jurisdiction; and this was done by the issue of devisavit vel non required at the final probat; which being borrowed from the English chancery, was directed to be made up in a chancery proceeding, upon a bill filed to impeach the validity *of the instrument. The consequence is, that though the primary probat is in a common law Court, the final probat is turned over to a Court of Chancery, to be had through the intervention of a jury, impaneled by its direction, there or elsewhere. Another consequence is, that the statute requires no citation by the pro-pounder of the instrument of the widow and next of kin, or the heirs at law, or the executor, either upon the primary or the final probat. As in the English practice, all citation is dispensed with upon the primary probat: and upon the final probat, the citation is not by the propounder of the will, but by those actively engaged in impeaching it, and brings into Court all others interested in the controversy.

The foregoing views bring us to the distinction between the effect of the probat sentence when pronounced in favour of the instrument, and its effect when pronounced against it. And here it is obvious there can be none, in regard to the second or final probat proceeding: the sentence in that is equally conclusive, whether it be for or against the will. But there is a wide distinction between the effect of a sentence for, and a sentence against the will, upon the first or primary probat proceeding. In that, a sentence establishing the instrument, though effectual to all intents and purposes, while in force, concludes nothing upon the second or final probat. It is otherwise when the sentence rejects the will as invalid; and we have to consider how far it is conclusive against a repropounding of the instrument.

It is manifest that it was the policy of our Eegislature to authorize the probat of wills, whether of personalty or realty, upon an ex parte proceeding, in order to avoid the injurious delays in the administration of the assets, and the disposition of the property, which might arise in cases free from controversy, if the citation of all persons interested in the subject were made a prerequisite. The statute, therefore, provided, that “when any will *shall be exhibited to be proved, the Court may proceed immediately to receive the probat thereof, and grant a certificate of such probat;” without any provision for the convocation of parties, except that, “if any person interested shall within five years afterwards appear, and by bill in chancery contest the validity of the will, an issue shall be made, whether the writing produced be the will of the tes tator or not, which shall be tried by a jury', whose verdict shall be final between the parties; saving to the Court a power of granting a new trial for good cause as in other trials; but no such party appearing within that time, the probat shall be forever binding: saving also (by the revised act of 1819) to infants, femes covert, and persons absent from the State, or non compos mentis, the like period after the removal of their respective disabilities.”

It will thus be seen that the statute contemplated no citation of parties upon the primary probat of the instrument; but substituted for it a subsequent convocation of them, by a bill in chancery, within a given period. The propounder of the will, therefore, could gain nothing by a citation of the parties upon the primary probat; for they were not bound to appear, and those not appearing could contest the will after-wards by the subsequent proceeding. This was another departure from the ecclesiastical law, and one productive of some inconvenience; for by that law the executor has a discretion to propound the will of personals either in common form, or solemn form; and if he adopts the latter, the sentence pronounced on citation of the widow and next of kin, whether for or against the will, is conclusive. Whereas, under our statute, any one opposed to the will might voluntarily appear and contest it, and continue the controversy in the appellate forums; and after a sentence in favour of it in the Court of last resort, some other person of like interest might renew the conflict by a bill in chancery, and so review before a *jury the decision of the Supreme Court of Appeals. This is to some extent remedied by our act of 1838, by which the propounder of the will may offer it at once, in the proper Circuit Court, for final probat, convene by citation all persons interested in the subject, and prosecute the case to a conclusive sentence, for or against the will. There are other valuable provisions in this statute, which need not be here noticed, as the mode of proceeding which it authorizes is entirely discretionary with the propounder, and the case now before us has its origin under the previous statute.

It will be further seen that the act of 1785 is silent as to the effect of a sentence against the will upon the first propounding, and contains no provision whatever in that event for a repropounding of the instrument. The question, therefore, whether such a sentence is a conclusive bar against any future propounding of the will, is to be determined by the general principles of law applicable to such a judgment.

And here I need not consider whether if no one contests the probat of the will, and yet the Court decides against it, and the sentence consequently is not inter partes, the instrument can afterwards be repro-pounded by the same person; nor whether, though there be a contestant, if by reason of some surprise, accident or mistake, the merits of the case be not heard, and a like sentence be pronounced against the pro-pounder, from which circumstances preclude him from appealing, he can afterwards be allowed to repropound the instrument. The facts of this case present no such questions. Here, the merits were developed on the first propounding, and inter partes, the only next of kin and heir at law interested in disputing the will, and her husband, having appeared as defendants in opposition to the probat; and here, the repropounder is a different person from the first, but having a like interest in establishing the validity of the instrument.

*The general rule that judgments are evidence only against parties and privies, is not applicable to a proceeding like this, in which the object is not a recovery by one person against another, but the establishment of an important muniment of title, to which all persons may appeal in all time to come. The thing determined is the matter of testacy or intestacy, and the rights of persons are affected only incidentally and consequentially, and not because they were parties to the judgment, but because such a judgment has in fact been rendered. The sentence operates in rem, upon the instrument itself, which it establishes or condemns; and is analogous to the sentence of a Court of Admiralty upon a question of prize, or that of the Exchequer upon a question of forfeiture; which are binding upon all persons, whether parties to the proceeding or not.

In probat matters, it is true, it is proper for Courts exercising a general jurisdiction over the subject, by their decisions, or for the Legislature, by its enactments, to establish such rules of citation, notice or publicity, as justice and good policy may seem to require; and such rules when prescribed, must of course be obeyed. But there is no inherent necessity for any given regulations of that nature: they may indifferently require a special summons, or a general publication or proclamation, or leave the matter to rest upon the mere notoriety or publicity of the proceeding itself. In regard to opponents of the instrument, our Legislature has given them every opportunity of contestation that could be desired. In regard to its advocates, the opportunity of asserting and establishing its validity, in the first instance, arises out of the very nature of the proceeding. They, or one or more of them, have the possession of the instrument, or the means of obtaining it; they may select their own time for propounding it, and all requisite means for sustaining it; they have a common cause, and may unite formally or substantially in its prosecution, or leave it to *those most capable, zealous and active. All may aid in promoting the common interest, according to their several capacities, means and inclinations; any one may interpose at pleasure as a formal party, before the rendition of the sentence, or afterwards in renewing and pursuing the controversy in an appellate forum.

It follows from these considerations, and as a matter of necessity, that under our statute, a sentence against the propounder of the instrument is a sentence against all claiming under it. He is the champion of the common cause, and charged to keep the lists against all antagonists, and not the less that some of his associates may be disabled by infancy, coverture or other impediments. If this were not so, then the contest might be made interminable, by the separate and successive propoundings of the several claimants under the will.

This construction of our statute conforms to the probat law of the Ecclesiastical Courts, by which there can be no repro-pounding of the instrument, after a sentence against it upon the merits, whether the former propounding has been in solemn form or in common form. The rule is well established, and the cases cited in the argument as tending the other wajT have, it seems to me, no application: they were not cases (with one exception, where the sentence was not upon the merits), in which the instrument, whether a will or a codicil, had been rejected, but in which it had been admitted to probat in common form, and a repropounding was called for by some one interested (in defeating the instrument, in the whole or in part; such as a next of kin who happened also to be a legatee, or a legatee in a former will, or in a subsequent will or codicil. And in such cases, the executor does not represent the interests of the legatee, and cannot do so, being in direct hostility thereto.

The rule which I have thus stated broadly, that the sentence of a Court of Probat rejecting a propounded will as invalid, is conclusive against all persons claiming *under it, is subject, however, to an important exception.- If the sentence has been fraudulently obtained, by collusion between the propounder and the contesting party, it is binding only between themselves, and cannot affect the rights of others claiming under the instrument. The propounder, when - acting fairly, represents the will, and all interests created by it; but when guilty of collusion, he represents none but himself and the adverse party. This exception rests as well upon the general principles of law, as the cases in the Ecclesiastical Courts, which recognize the right of a legatee, under' such circumstances, to have the instrument" «propounded.

' In the case before us, the will in question was propounded for probat in the Circuit Court) on the 6th of December 1826, by Thomas E. Spraggins, the husband of a deceased daughter of the testator, and the father of her children, who were principal devisees and legatees in the will, and who, in the event of intestacy, would have been entitled-to a- large share of his estate, as heirs at law and distributees. There can be no doubt of the authority of Spraggins to propound the will; whether as executor, or as trustee for his children, or as their natural guardian, is unimportant. The, probat was contested by Nancy Wills, the only other daughter of the testator, and her husband James Wills; neither of whom took any interest under the will, but whose only child, William B. Wills, was a legatee to a considerable amount. The contest was earnestly and vigorously conducted on both sides, and on the 7th of December 1827, after the cause had been fully heard upon its merits, the Circuit Court pronounced its sentence against the will. The whole evidence was spread upon the record, and the plaintiff, Spraggins, took an appeal to the Court of Appeals, where the appeal was dismissed, by the written direction of the appellant, on the 9th of June 1830. This dismission was the result of a compromise, made between the appellant, Sprag-gins, and *the appellee, Wills, pending the appeal. Bj* the terms of the compromise, the whole estate, real and personal, after providing for the widow’s dower, was divided between James Wills and the children of Spraggins, the latter getting much the larger share of the estate, and the legatee, William B. Wills, nothing, except one slave, not bequeathed to him by the will. On the supposition that the will ought to have been established,, the rights of William B. Wills were completely sacrificed ; he being deprived of his whole legacy, consisting of a pecuniary bequest of 5000 dollars, and a female slave with her increase.

At the time of this sentence, appeal, compromise and dismission, William B. Wills, the disappointed legatee, was an infant of tender years, and no party to the proceedings, otherwise than as represented by the propounder Spraggins. On the 20th of April 1844, nearly seventeen years after the sentence against the will, but within seven years after William B. Wills had attained full age, he moved the Circuit Court by petition for leave to repropound the instrument. In this proceeding, he conformed to the provisions of the act of 1838, by citation of the other persons interested in the question of probat: they appeared and contested the repropounding: the evidence on both sides, embracing the record of the former proceedings and testimony, and some additional evidence of but little importance, was heard; and the Circuit Court, on the 17th of May 1845, overruled the motion to repropound the will, and dismissed the petition. And to that sentence, this supersedeas has been granted.

If the sentence of the Circuit Court against the will, in December 1827, had been brought about by a compromise, such as was afterwards made, I should have no hesitation in saying that it was collusive and fraudulent as regards the rights of William B. Wills, and that his proper remedy, if he came in due time, as to which I "express no opinion, was to repropound the instrument: and I would sajr so without enquiry whether the former sentence had been in conformity with or against the merits of the case. In that aspect, William B. Wills would have been deprived of a hearing upon the merits: the former sentence would be properly treated, in regard to him, as a mere nullity ; and he would have a right to be heard de novo. But such is not the case presented by this record. The sentence was in no wise collusively or fraudulently obtained. On the contrary, the record of the former proceeding furnishes intrinsic evidence, needing no confirmation, but which is completely sustained by the testimony on the repropounding, that the case was fully heard upon the merits, without any fraud or collusion whatever, and after active, diligent and skilful efforts on the part of the pro-pounder Spraggins, to establish the validity of the will, and procure its admission to probat. The compromise was entirely made after the sentence of the Circuit Court against the will, when that Court had no longer any control over the subject, and during the pendency of the appeal.

The motives for the compromise are quite obvious. James Wills secured to himself thereby a portion of the estate, whatever might otherwise have been the result of the appeal; for though an affirmance would have given him an interest in right of his wife, a reversal would have left him nothing. On the other hand, Spraggins obtained by it for his children, though not so great an interest as was given them by the will, yet much more than in case of intestacy. The parties to the' compromise probably thought that they had a right to submit to the sentence, (as they unquestionably had,) and upon such terms as they chose to agree upon; but they forgot the duty of having due regard to the interests of the disappointed legatee. In this they acted unjustly, and in this only. If the compromise had secured *to him a substantial and reasonable interest in the subject, it would have been difficult to perceive upon what ground he could have had cause of complaint. At the worst, he has lost only the chance, if I may so speak, of reversing a sentence to his prejudice, fairly obtained, upon a full hearing of the merits.

Still, if I could see my way clearly to affording him redress, I would be glad to do so. But here is the difficulty which lies at the threshold : what power could the Circuit Court have to reverse its own final judgment, fairly obtained, upon a hearing of the merits, between the proper parties? Not more, I presume, than it would have had if that judgment had been deliberately affirmed by the Court of Appeals. And yet, if the Circuit Court had sustained the re-propounding, and admitted the will to probat, it must thereby have reversed substantially its own previous judgment rendered many years before. The judgment was neither void nor voidable, there having been no fraud or covin in obtaining it; and could only be vacated by a judgment of reversal in an appellate forum. If it was right upon the merits at the time it was rendered, it remains so still, and is unimpeachable: if wrong upon the merits, and the repropounding can only be reached by treating it so, and disregarding its force, and efficacy, what is that but a judgment of reversal?

In truth, a repropounding is allowable, not upon the ground that a former sentence was wrong upon the merits, but because the repropounder was unfairly represented, and therefore is not to be treated as a party to the former proceeding; and upon the latter ground, the repropounding is equally allowable, whether the former sentence was right or wrong. The former sentence may have been perfectly right upon the merits, as then disclosed by the evidence; and yet the repropounder may begin de novo, and shew by his new evidence that the merits lie the other way; and simply for the reason ':;'that he is not concluded by the former sentence. And whether he be so concluded, or not, turns upon the mere question, whether the former judgment was fairly or fraudulently obtained.

It seems to me clear, that a subsequent fraud cannot retroact upon a prior fair judgment. If the disappointed legatee was aggrieved by being excluded from the benefits of the compromise, his mode of redress was a bill in equity to be admitted to a due participation. If the grievance was the dismissal of the appeal, then his redress was in regard to that matter, and the mode of it the prosecution of an appeal himself, to which he was entitled as a substantial party to the proceeding in rem. If from any defect of our legislation at the time, or any change in our legislation afterwards, he was precluded, under the circumstances in which he was placed, from exercising the right of appeal, that misfortune cannot entitle him to another mode of redress unwarranted by law.

The grievance, moreover, of which the appellant complains, would seem to have been, not certain and absolute, but hypothetical and contingent. His complaint is founded upon the supposition that if the compromise had not been made, Spraggins would have prosecuted his appeal, and that the result would have been a reversal of the former judgment. But, in the first place, how can it be ascertained that Spraggins would have prosecuted his appeal, though no compromise had been made? He might still have chosen to dismiss it, and in that state of things, no one can deny that he would have had a perfect right to do so. And, in the next place, how can it be known that if the appeal had been prosecuted, the judgment would have been reversed? We may, it is true, look into the evidence on which it was founded, which happens to be spread upon the former record, and possibly form an opinion, incidentally and collaterally, that the judgment ought to have been reversed; but *that would be a matter of opinion; and how can we be certain that it would have prevailed upon the direct appeal from that judgment? And if we were to allow ourselves to form such an opinion, how could we act upon it, in the face of the former judgment, which has not been, and never can be, brought before us by an appeal; and which is as completely "beyond our reach as if it had been affirmed by this Court. Besides, the question before us is not, whether the Judge of the Circuit Court erred in not admitting the will to probat, but whether he erred in overruling the motion to repropound it. It was that preliminary question alone, which he had the power to decide: for the .repropounding was under the statute of 1838, which requires that the merits of the case shall be decided by a jury, upon an issue of devisa-vit vel non, unless the parties should consent to waive that mode of trial, and submit the merits to the decision of the Court.

It is therefore not competent for us to decide that the will ought to have been established by the former judgment, nor that it ought to be now established; but we are to decide whether it can be repropounded; and that depends exclusively upon the question, whether the repropounder was substantially a party to the former judgment. I think he was, there being no ground for believing that the former judgment was obtained by collusion or fraud; and it seems to me to follow inevitably, that he is concluded thereby. It is true, the appeal from that judgment was a continuation of the same proceeding; but it is equally true that it was a continuation of the same judgment, which, though suspended as to its execution, remained in full force and efficacy, as the final and conclusive decision of a Court of competent jurisdiction, until reversed by an appellate forum.

My opinion is, that the judgment of the Circuit Court, overruling the motion to repropound the will, ought to be affirmed.

*ALLEN, J., concurred in the results of Baldwin’s opinion.

BROOKE, J.,

thought there was but one question in the cause. That was whether there was fraud in dismissing the first appeal. And having the record in that case before the Court, and being of opinion the judgment of the Superior Court of Charlotte was right, he did not consider it important, whether there was, or was not fraud in dismissing. the appeal.

CABEEE, P., dissented.  