ing the will actually had jurisdiction.18 The courts of common law formerly went so far as to hold that the forgery of a will which had been admitted to probate could not be made the ground of an indictment until the probate had been revoked; but according to later and sounder decisions, the probate, though conclusive until set aside of the disposition of the property, does not protect the forger from punishment. 19 Although the probate of a will is generally necessary to its introduction in evidence, such will is not brought into legal existence by the judgment admitting it to probate. Such probate merely declares in a formal way the existence of facts which have previously occurred, and furnishes official evidence of those facts.20 377. Persons Concluded. Since at common law the probate of a will was not conclusive as to realty, it was not binding upon heirs,' especially where the heir was not a party to the proceedings. In modern times, the probate of a will being a proceeding in rem3 is conclusive not only on the parties and privies but on all the world." The next of kin will be bound by a sentence admitting a will to probate, though not party to the proceedings, nor summoned to "see proceedings," if, at the time of any prior contest over the probate, they had notice hereof and did not intervene. The executor in seeking to propound a will is in privity with the legatees claiming under the instrument, and a decree denying probate will be binding against them, even though they were, at the time of the decree, laboring under such disabilities as coverture, or infancy, or even if at that time they were not yet in esse. In effect all persons claiming under a will which has been offered for probate and rejected are bound by the decree refusing to admit the instrument to probate. Not only the parties but all other persons are, in the absence of statute, precluded from repro 18. Davis v. Albritton, 127 Ga. 517, 56 S. E. 514, 119 A. S. R. 352, 8 L.R.A. (N.S.) 820; Mosser v. Flake, 258 Ill. 233, 101 N. E. 540, Ann. Cas. 1914B 425. Generally as to absence of jurisdiction as ground for collaterai attack, see JUDGMENTS, vol. 15, p. 841 et seq. 19. Waters v. Stickney, 12 Allen (Mass.) 1, 90 Am. Dec. 122. 20. Matter of Patterson, 155 Cal. 626, 102 Pac. 941, 132 A. S. R. 116, 18 Ann. Cas. 625, 26 L.R.A. (N.S.) 654; Belton v. Summer, 31 Fla. 139, 12 So. 371, 21 L.R.A. 146. 1. Note: 60 Am. Dec. 360. 2. McArthur v. Scott, 113 U. S. 340, 5 S. Ct. 652, 28 U. S. (L. ed.) 1015. 3. See supra, par. 376. 4. In re Davis, 151 Cal. 318, 86 Pac. 183, 90 Pac. 711, 121 A. S. R. 105; In re Creighton, 91 Neb. 654, 136 N. W. 1001, Ann. Cas. 1913D 128; Cutter v. Butler, 25 N. H. 343, 57 Am. Dec. 330. 5. Sly v. Hunt, 159 Mass. 151, 34 N. E. 187, 38 A. S. R. 403, 21 L.R.A. 680 and note; Cohen v. Herbert, 205 Mo. 537, 104 S. W. 84, 120 A. S. R. 772; Williams v. Robinson, 42 Vt. 658, 1 Am. Rep. 359 And see JULGMENTS, vol. 15, pp. 997, 1008. 6. Redmond v. Collins, 15 N. C. 430, 27 Am. Dec. 208. 7. Redmond v. Collins, 15 N. C. 430, 27 Am. Dec. 208. 8. Schultz V. Schultz, 10 Grat. (Va.) 358, 60 Am. Dec. 335 and note. pounding the will for probate." But the failure to appeal from an order probating a will does not prevent proceedings for the annulment of such probate, when it does not appear that the petitioner for annulment appeared at any hearing upon the matter of the decree or had any notice thereof prior to the expiration of the time for appeal.10 378. Matters as to Which Conclusive.-The probate of a will by the probate court having jurisdiction thereof is usually considered as conclusive as to its due execution 11 and validity,12 and is also conclusive that the testator was of sound and disposing mind at the time when he executed the will,18 and was not acting under duress, menace, fraud, or undue influence, and that the will is genuine and not a forgery.15 Similarly a decree denying probate on the ground of lack of testamentary capacity is conclusive on the parties to the proceeding as to the testator's capacity.16 A decision by the surrogate that a testator was an inhabitant of the county is conclusive against collateral attack independent of any statutory provision.17 379. Matters Not Concluded.-The functions of a probate court when a will is propounded for probate are limited to inquiring and determining whether or not the instrument presented to it as the last will of the decedent was executed by him in the manner prescribed by statute, and when he was legally competent to execute it,18 and free from duress, menace, fraud and undue influence.19 Questions as to the property rights of devisees, legatees, heirs, and others which might arise out of a construction of the terms of a will are not to be determined in a proceeding for the probate of a will,20 and therefore the 9. Note: 15 Ann. Cas. 69. 10. Merrill Trust Co. v. Hartford, 104 Me. 566, 72 Atl. 745, 129 A. S. R. 415. 11. Lorieux v. Keller, 5 Ia. 196, 68 Am. Dec. 696; Sumner v. Crane, 155 Mass. 483, 29 N. E. 1151, 15 L.R.A. 447; Brown v. Brown, 71 Neb. 200, 98 N. W. 718, 115 A. S. R. 568, 8 Ann. Cas. 632; In re Kimberly, 32 S. D. 1, 141 N. W. 1081, Ann. Cas. 1916A 362; In re Carey, 49 Vt. 236, 24 Am. Rep. 133; Domestic, etc., Missionary Soc. v. Eells, 68 Vt. 497, 35 Atl. 463, 54 A. S. R. 888. Note: 113 A. S. R. 214. 12. Gaines v. New Orleans, 6 Wall. 642, 18 U. S. (L. ed.) 950; State v. McGlynn, 20 Cal. 233, 81 Am. Dec. 118. 13. Sly v. Hunt, 159 Mass. 151, 34 N. E. 187, 38 A. S. R. 403, 21 L.R.A. Ann. Cas. 632; In re Johns, 30 Ore. 494, 47 Pac. 341, 50 Pac. 226, 36 L.R.A. 242. Note: 113 A. S. R. 214. 14. In re Kimberly, 32 S. D. 1, 141 N. W. 1081, Ann. Cas. 1916A 362. 15. Tracy v. Muir, 151 Cal. 363, 90 Pac. 832, 121 A. S. R. 117; Newman v. Waterman, 63 Wis. 612, 23 N. W. 696, 53 Am. Rep. 310. 16. In re Goldsticker, 192 N. Y. 35, 84 N. E. 581. 15 Ann. Cas. 66, 18 L.R.A. (N.S.) 99. 17. Bolton v. Schriever, 135 N. Y. 65, 31 N. E. 1001, 18 L.R.A. 242 and note. 18. Graham v. Burch, 47 Minn. 171, 49 N. W. 697, 28 A. S. R. 339. 19. Lowery v. Hawker, 22 N. D. 318, 133 N. W. 918, 37 L.R.A. (N.S.) 1143. 689; Brown v. Brown, 71 Neb. 200, 20. Bell v. Davis, 43 Okla. 221, 142 98 N. W. 718, 115 A. S. R. 568, 8 Pac. 1011, Ann. Cas. 1917C 1075. meré probating of a will is not final and conclusive as to the construc-. tion of the instrument. The validity of particular testamentary gifts contained in the will are not involved in the proceedings, and the orphans' court in admitting to probate the will of a married woman, disposing of her separate property, does not decide upon the right of disposal, but merely the factum of the instrument. Nor is the question of ownership by the testator of property claimed to belong to his estate involved in or determined by the probate of his will. Since the admission of a will to probate decides nothing but its due execution and publication the rights of one claiming a share of the estate on the ground that he is not mentioned in the will are not concluded by such decree.5 380. Wills of Real Estate.-Under the common law there was no mode by which a 'will devising real estate could be probated and recorded once for all. The will was simply a muniment of title, and the devisee or those claiming under him, where they offered it in evidence before any court, and it was attacked, had to prove its due. execution. Although a will of personal and real estate could be probated, such probate was not conclusive as to the real estate. This rule was followed at an early period in some of our states, but in most jurisdictions the distinction between real and personal property is no longer recognized, and the probate of a will is equally conclusive as regards each class of property." The record of the will, duly certified, and the probate thereof, are received as evidence of the title of real estate therein devised, the same as is the record of deeds to real estate.10 381. Conclusiveness of Denial of Probate.-Where an instrument purporting to be a will is propounded for probate by an authorized person, and there is a decree of the probate court, fairly obtained and pronounced on the merits, excluding the paper from probate, such de 1. Fallon v. Chidester, 46 Ia. 588, 26 Am. Rep. 164; Lowery v. Hawker, 22 N. D. 318, 133 N. W. 918, 37 L.R.A. (N.S.) 1143; La Rue v. Lee, 63 W. Va. 388, 60 S. E. 388, 129 A. S. R. 978, 14 L.R.A. (N.S.) 968. 2. Morgan v. Halsey, 97 Ky. 789, 31 S. W. 866, 36 L.R.A. 716; Lilly v. Tobbein, 103 Mo. 477, 15 S. W. 618, 23 A. S. R. 887. 3. Michael v. Baker, 12 Md. 158, 71 Am. Dec. 593 and note. 4. Fallon v. Chidester, 46 Ia. 588, 26 Am. Rep. 164; Sumner v. Crane, 155 Mass. 483, 29 N. E. 1151, 15 L.R.A. 447. Am. Dec. 671. 9. Note: 60 Am. Dec. 360. 10. Chilcott v. Hart, 23 Colo. 40, 45 Pac. 391, 35 L.R.A. 41; In re 5. Lorieux v. Keller, 5 Ia. 196, 68 Johns, 30 Ore. 494, 47 Pac. 341, 50 Am. Dec. 696. Pac. 226, 36 L.R.A. 242. cree is conclusive of the right of the parties represented in the proceed-. ing to repropound the will for probate.11 Such a decree stands upon a footing analogous to a judgment in rem,12 and is conclusive of its invalidity in all collateral proceedings, with respect to real as well as personal property.13 A decree of the probate court rejecting a will for lack of testamentary capacity is conclusive on parties to the proceeding, as to testator's capacity to revoke a former will offered for probate, so far as it involves personal estate, but not in its relation to rea! estate. 14 And an executor cannot repropound a testament, pronounced against when first offered by him, otherwise than upon the ground of newly discovered evidence.15 But where the common law view that probate is not conclusive as to real estate is still followed, the decision of a register repudiating a will, and the verdict of a jury condemning it, are conclusive only as to personal estate, and not as to the title to real estate.16 Accordingly a devisee may maintain ejectment upon the will, after it has been rejected by the court of probate upon having been propounded to it by the executor.17 382. Conclusiveness in Domestic Courts of Foreign Will Probated Abroad.-There is some conflict of authority as to the effect of a decree from another state probating a will. This is due in some cases to the construction placed on statutory provisions, and in some cases to the question of domicil, and in others to the kind of property affected.18 It is generally held that a decree admitting a will of personalty to probate in the proper tribunal of the domicil of the testator is conclusive everywhere of the capacity of the testator and of the due execution and validity of the will.19 In some jurisdictions it is held that a foreign. 11. Campbell v. Porter, 162 U. S.' 18. Note: 48 L.R.A. 137. And see 478, 16 S. Ct. 871, 40 U. S. (L. ed.) 1044; Thornton v. Baker, 15 R. I. 553, 10 Atl. 617, 2 A. S. R. 925; Schultz v. Schultz, 10 Grat. (Va.) 358, 60 Am. Dec. 335 and note. Note: 15 Ann. Cas. 68. CONFLICT OF LAWS, vol. 5, p. 1021 et seq. Generally as to the extra territorial operation of judgments of probate courts, see JUDGMENTS, vol. 15, p. 914 et seq. 19. Darby v. Mayer, 10 Wheat. 465. 6 U. S. (L. ed.) 367; Blacksher Co. v. 12. Schultz V. Schultz, 10 Grat. Northrup, 176 Ala. 190, 57 So. 743, (Va.) 358, 60 Am. Dec. 335. 13. Note: 15 Ann. Cas. 68. 14. In re Goldsticker, 192 N. Y. 35, 84 N. E. 581, 15 Ann. Cas. 66, 18 L.R.A. (N.S.) 99. 15. Redmond v. Collins, 15 N. C. 430, 27 Am. Dec. 208. 16. In re Goldsticker, 192 N. Y. 35, 84 N. E. 581, 15 Ann. Cas. 66, 18 L.R.A. (N.S.) 99; Asay v. Hoover, 5 Pa. St. 21, 45 Am. Dec. 713. 17. Redmond v. Collins, 15 N. C. 430, 27 Am. Dec. 208. 42 L.R.A. (N.S.) 454; Martin v. Stovall, 103 Tenn. 1, 52 S. W. 296, 48 L.R.A. 130 and note. See, however, Bowen v. Johnson, 5 R. I. 112, 73 Am. Dec. 49, in which it is held that the probate of a will in another state is only prima facie evidence of its validity, upon an application to a probate court in Rhode Island to allow a copy thereof to be filed and recorded in the latter state. Notes: 73 Am. Dec. 55; 113 A. S. R. will, duly probated abroad, is conclusive of the validity of the will, in the courts of the domestic state, as to realty situated in the latter state,20 but in others a foreign will duly probated abroad is not conclusive in the courts of the domestic state as to realty therein situated.1 There are a number of decisions to the effect that a foreign will duly probated abroad is not conclusive as to the domicil of the testator, but it has been held that a foreign court must be presumed prima facie to have based its adjudication respecting such domicil at the time of the testator's decease on sufficient evidence.3 Probate of Ancient, Lost, or Destroyed Wills 4 383. Probate of Ancient Wills.-A will which is more than thirty years old reckoned from the death of the testator is, like other ancient documents, said to prove itself, and it is not necessary to prove it by calling the attesting witnesses, although they are all alive. This rule has been arbitrarily adopted as a matter of convenience. 384. Probate of Lost or Destroyed Wills Generally.-A will, lost or destroyed previous to the testator's death, may, if unrevoked, be established by evidence of its execution and contents, and admitted to probate. But in order to establish a lost or destroyed will its due execution must be proved,10 and it has sometimes been said that such execution must be proved by the subscribing witnesses.11 The legisla 214; 9 Ann. Cas. 422; Ann. Cas. 1918A In re Horton, 217 N. Y. 363, 111 614. N. E. 1066, Ann. Cas. 1918A 611 and And see CONFLICT OF LAWs, vol. 5, note. p. 1021. 20. Notes: 6 L.R.A. (N.S.) 617-620; 9 Ann. Cas. 422; Ann. Cas. 1918A 615. 1. M'Cormick V. Sullivant, 10 Wheat. 192, 6 U. S. (L. ed.) 300; Darby v. Mayer, 10 Wheat. 465. 6 U. S. (L. ed.) 367; Robertson v. Pickrell, 109 U. S. 608, 3 S. Ct. 407, 27 U. S. (L. ed.) 1049; Parnell v. Thompson, 81 Kan. 119, 105 Pac. 502, 33 L.R.A. (N.S.) 658; Sneed v. Ewing, 5 J. J. Marsh. (Ky.) 460, 22 Am. Dec. 41; Bowen v. Jolinson, 5 R. I. 112, 73 Am. Dec. 49. Notes: 113 A. S. R. 215; 6 L.R.A. (N.S.) 618; 9 Ann. Cas. 423; 14 Ann. Cas. 977; Ann. Cas. 1918A 616. Notes: 9 Ann. Cas. 423; 14 Ann. Cas. 277; Ann. Cas. 1918A 616. 3. Notes: 9 Ann. Cas. 423; 14 Ann. Cas. 277. 4. Jackson v. Blanshan, 3 Johns. (N. Y.) 292, 3 Am. Dec. 485. 5. As to the general rule that ancient documents prove themselves, see EVIDENCE, vol. 10 p. 1097 et seq. 6. Settle v. Alison, 8 Ga. 201, 52 Am. Dec. 393. 7. Jackson v. Blanshan, 3 Johns. (N. Y.) 292, 3 Am. Dec. 485; Shaller v. Brand, 6 Bin. (Pa.) 435, 6 Am. Dec. 482. 8. Settle v. Alison, 8 Ga. 201, 52 Am. Dec. 393. 9. In re Thompson, 114 Me. 338, 96 And see CONFLICT OF LAWs, vol. 5, Atl. 238, L.R.A.1918A 911; Tynan v. p. 102. 2. In re Clark, 148 Cal. 108. 82 Pac. 760, 113 A. S. R. 197 and note, 7 Ann. Cas. 306, 1 L.R.A. (N.S.) 996 Paschal, 27 Tex. 286, 84 Am. Dec. 619 and note. 10. Note: 38 L.R.A. 441. 11. Kitchens v. Kitchens, 39 Ga. |