Janes et al. vs. Williams et al.

it established no right in Williams, as executor, and in no respect lessened his responsibility to them, if, in fact, they should prove to be entitled to Duckett's estate. Nor did it discharge Reeder, Briggs and Campbell, from liability to account for any act for which otherwise they would have been liable.

Holding as we must, that the letters testamentary granted to Williams had been revoked, and that by force of the decree of the Chancery Court he could acquire no valid authority to act as such, still as he acted part of the time under a valid appointment, and afterwards under an appointment which he may have supposed valid, and has had possession of the estate, he should have been so charged. The plaintiffs have studiously avoided recognizing Williams as exécutor, or as acting under a trust, but when all of the allegations are taken together, and when it is seen that the prayer of the bill is for an account of the property which has been so received by him, it was necessary and proper to have charged him as such. If such is not the case, it is difficult to conceive of any grounds for equitable relief, and even when so considered, we are not prepared to decide that the plaintiff has made a case for equitable relief in his bill.

It is shown that Duckett was possessed of a large and valuable estate. That certain parties assuming to act under a will, have had charge of it for a time. That Reeder, Briggs and Campbell had, at different periods, been appointed administrators of the estate, that the estate has been also for a time in their hands, that no settlement has been made with the Probate Court, that there are debts that the personal property is not sufficient to pay, that most of the legacies have been paid. They deny the validity of the will, and pray that the ownership to the property may be determined, that Williams who has had, and now has, the estate in his possession may be held to an account, and the estate divided.

Janes et al. vs. Williams et al.

Such is substantially the case made by the bill; in view of which, the question arises as to the equitable grounds presented in the bill. They must arise upon a state of facts which bring the case within some of the grounds for relief in equity-one in which adequate relief cannot be had in a court of law. The principles of equity, says Story, 1 Eq., 22, are as fixed and certain as the principles on which the courts of the common law proceed.

The primary and original object of the suit must be one clearly within the jurisdiction of the court, 1 Ark., 31, and not the less obligatory upon the parties or the court, because they are more liberal. Ib. 410.

If it was intended by the plaintiff to raise an issue of devastavit vel non in a court of law, his bill fails so to present his case.

The equity for administering the assets of a testator or intestate, does not authorize the Court of Chancery to try the validity of a will. The jurisdiction for that purpose, in regard to wills of personal estate, belongs to the Ecclesiastical Courts, and in regard to the wills of real estate to the courts, of the common law, and our statute in observance of this rule requires, that at any time within three years after the final decision of the Probate Court, the party interested in any will may, by bill in chancery, impeach the decision, and have a re-trial of the question of probate, and that either party shall be entitled to a jury. This provision, Gantt's Digest, sec. 5794, extends to all wills, whether for real or personal property.

This question of will or no will, is of paramount importance. If there is a will then the plaintiffs are not entitled to the property, and have no right either in a court of law or equity to hold defendants to account.

The order and judgment of the court to admit to record the will as probated, upon the copy of the will and the proof and

Janes et al. vs. Williams et al.

orders certified from the Court of Ordinary of Newberry District, never was set aside, nor was there any attempt made to set it aside. The attack made upon the validity of the will, and its probate in Arkansas, is, evidently, based upon the assumption that it was not a will unless probated as such. That as Duckett resided in Sevier County, Arkansas, the will should be probated there to give it effect, and particularly as the landed estate of Duckett lay in Sevier County in this State. Let us concede that such should have been done, and that the evidence produced before the Court of Probate was not sufficient to warrant the judgment and decision of the court, and that the proceedings were erroneous, yet, however erroneous the judgment of the court, it is binding upon all parties until reversed by a higher tribunal. Miller v. Barkeloo, 8 Ark., 318.

At common law, the probate of a will in the Ecclesiastical Court was conclusive as to its execution only so far as related to personal property.

Our statute, sec. 17, Ch. 180, Gould's Digest, provides, that if the testator have a known place of residence in this State, his will shall be proven in the county in which he resided; if he have no known place of residence, and lands be devised, it shall be proven in the county in which the lands lie; and if he have no known place of residence, and there is no land devised, it shall be proven in the county in which the testator died; and if he died out of the State, in any county.

It will readily be perceived that, as the testator in this instance had a known domicil, and did devise land, it was necessary that the will should be proven in the county of Sevier, where the lands lie, and which was also his place of residence, as alleged by plaintiffs. In the case before us, there was an attempt to furnish what was assumed to be competent evidence, an authenticated copy of the will, the proof upon which it was established and probated in South Carolina, together with the statement that the

Janes et al. vs. Williams et al.

testator's domicil was in South Carolina. This is all of the evidence; there was nothing to prove the contrary; it was presented for the consideration and judgment of a court of competent jurisdiction, and was held to be sufficient. We think the evidence not sufficient; certainly not to devise real estate in Arkansas, but, until reversed and set aside, for which provision is made by statute, we do not feel at liberty to treat the judgment of the court as void.

In the case of Townsend v. Estate of Downer, 32 Ver., 216, when considering the effect to be given to a probated will, Aldis, J., said: "The will, having been approved by the Probate Court, and nothing appearing to show that the court did not have jurisdiction, its jurisdiction will be sustained. It is presumed to have jurisdiction till the contrary appears. The objection to the certificate authenticating the probate of the will in New York should have been taken in the Probate Court. The decree of the Probate Court admitting the will to probate here cannot be assailed in this collateral manner."

The probate of a will by the statutory courts in England or the United States is conclusive evidence that the document is testamentary. Wigram on Wills, part 2, p. 9.

In the case of Jourdan v. Mier, 31 Missouri, 40, Napton, J., said: "It is well settled that the probate of a will is a judicial proceeding. No particular form is prescribed by statute, in which the judgment of approval or probate shall be expressed.

The judgment of the clerk, or court, pronouncing a will to be legally proven or probated, is entirely distinct from the evidence upon which the judgment is pronounced.

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The objection to the admissions in evidence of the will of Joseph Jourdan were, that the proof upon which the probate was granted was insufficient.

Janes et al. vs. Williams et al.

"The insufficiency of the proof is no objection to the admissibility of the record of probate. If the will is admitted by the clerk, or the court, upon insufficient proof, the law has provided a mode by which the validity of the will may be disputed and decided."

This decision is decidedly in point. If the proof was insufficient to establish the will, the parties interested in setting it aside, had an adequate remedy afforded them by our statute, which provides (sec. 32, Ch. 180, Gould's Digest), "That if any person interested in the probate of any will shall appear within five years after the probate or rejection thereof, and by petition to the Circuit Court of the county in which such will was established or rejected, pray to have such will rejected (if previously established), or proven if previously rejected by the Court of Probate, it shall be the duty of the Circuit Court to direct an issue to try the validity of such will, which issue shall, in all cases, be tried by jury."

The 34th section makes a saving to infants, married women, persons absent from the United States, or of unsound mind, a like period after such disabilities shall have been removed.

We have carefully considered this question; it is one which may have a most important bearing upon the final determination of the case-and, after the most mature consideration, we are left the alternative of holding either that, however irregular the proceeding may have been in admitting the evidence adduced, or deciding it be sufficient to establish the will and admit it to record, as it was acted upon at the domicil of the testator, and in the county where most of the lands devised lay, the judgment and decision of the Court of Probate, probating the will and admitting it to record must stand until reversed or set aside, or to overturn the uniform series of decisions of this court for more than twenty years, and hold the orders and judgment of the Probate Court absolutely void.