
    Spofford v. Smith & a.
    
    The filing of a demurrer with the answer on a separate paper does not differ, in legal effect, from insisting on special matter in the answer, as provided by Eule 10.
    The validity of a will, duly proved and allowed in the probate court, cannot by a collateral proceeding be attacked on the ground that its execution was fraudulently proved.
    Bill in Equity, by the heir of a testator, to cancel the will, alleging that the testator was fraudulently induced to execute it; that upon the petition of Smith, one of the defendants and executor of the will, the plaintiff being a minor, the probate court appointed Currier, the other defendant, his guardian ad litem; that Currier was the plaintiff’s trustee under the will; that Smith obtained the probate of the will in pretended solemn form, after notice by publication, Currier not attending, and no appeal being taken. The defendants answered, denying the material allegations of the bill, and demurred, assigning that the court had no jurisdiction. The answer and demurrer were filed at the same time on separate papers. Motion to dismiss the demurrer.
    
      Mugridge, Perkins, and Albín Norris, for the plaintiff.
    
      Greene and Hawthorne, for the defendants. •
   Bingham, J.

In chancery the defendant, instead of filing a formal demurrer or plea, may insist on any special matter in his answer, and have the same benefit therefrom as if he had pleaded the same or demurred to the bill. Rule 10. The answer may be amended by inserting the demurrer in it. The probate of the will raised the issue of fraud alleged in the bill. There is no allegation of insufficiency of notice or other reason why the probate court, in appointing tbe guardian and allowing the will, did not have jurisdiction. A decree of the probate court upon matters within its jurisdiction cannot be impeached by a collateral proceeding. Gordon v. Gordon, 55 N. H. 399; Lyme v. Allen, 51 N. H. 242; Railroad v. Railroad, 57 N. H. 200; Poplin v. Hawke, 8 N. H. 124. When the answer is withdrawn, or amended by making the demurrer a part of it, the demurrer will be sustained.

Case discharged.

Allen, J., did not sit: the others concurred.  