#### J. A. H. EDWARDS et al. v. ALBERT WHITE et al.

(Filed 22 September, 1920.)

1. Wills — Probate — Common Form— Courts— Judgments— Collateral Attack.

Where a will has been admitted to probate in common form before the clerk of tbe Superior Court, and no inherent or fatal defects appear upon the face of the proceedings, the judgment may not be collaterally attacked, but only in the court where the judgment was rendered, and in accordance with the statutory provisions enacted for such purpose; and the record and probate of the will is conclusive evidence of its validity until it is vacated on appeal or declared void by a competent tribunal. Rev., 3128, 3129.

2. Same — Presumptions.

Jurisdiction of the court in admitting a will to probate is presumed, and acts or omissions affecting the validity of the proceedings and judgment must be affirmatively shown, and unless the want of jurisdiction, either as to the subject-matter or the parties, appears in some proper form, the jurisdiction and regularity of the proceedings leading up to the judgment will be supported by every intendment.

Appeal from Devin, J., at the March Term, 1920, of Halifax.

Action to set aside a will alleged to be a forgery or fraudulently offered for probate as the will of Bettie Y..Johnson. The alleged will, dated 1 June, 1906, was duly probated in common form on 11 May, 1907.' The plaintiffs seek to set aside the will and probate, on the ground that the paper-writing is not the will of Mrs. Johnson, and to have an ac*56counting and settlement with. J. Albert Johnson, the person named in the paper as her executor, concerning the money and other property which came into his possession as such executor.

The court held that this action is not maintainable, the probate of the will appearing by the record of it to be regular and formal in every particular, and thereupon dismissed the suit, taxing the plaintiffs with the costs, and they appealed.

Thorne & Thorne, R. B. Blaclcburn, George Green, and John L. Bridgers for plaintiffs.

Stuart Smith, A. P. Kitchin, E. L. Travis, and W. E. Daniel for defendants.

’WalKek, J.,

after stating the case: The correctness of Judge Devin’s 'ruling is so amply sustained by several recent decisions of this Court, where the question in the case was so exhaustively discussed, that it would be nothing more than supererogation to 'go over the same ground again. It was held there' that where a probate has no inherent or fatal defect appearing upon its face, the judgment of the court having full jurisdiction of the matter, cannot be indirectly or collaterally attacked, but the assault upon it must be made in the court where the judgment admitting the will to probate was rendered, and in accordance with the statutory provisions enacted for such purpose.

The recent decision in Starnes v. Thompson, 173 N. C., 467 (approved in the case of In re Thompson, 178 N. C., 540), discusses the subject so fully as to require but few additional observations at this time.

As jurisdiction is presumed, at least prima facie, any acts or omissions affecting the validity of the proceedings and judgment must be affirmatively shown, and unless the want of jurisdiction, either as to the subject-matter or the parties, appears in some proper form, the jurisdiction and regularity of the proceedings 'leading up to the judgment will be supported by every intendment. 11 Cyc., 692, 693.

The rules as to the presumption in favor of.the courts of general jurisdiction apply to courts of probate and those with like powers, where they are courts of general jurisdiction or possess the attributes thereof, even though they have not exclusive jurisdiction,, or have a limited but not a special jurisdiction or their powers are limited to certain specified subjects. 11

ít is further to be remarked that although a court may be an inferior or limited tribunal, yet if it has general jurisdiction of any one subject, its proceedings and judgments in respect to that subject will be sustained by the same liberal presumptions as to the jurisdiction which obtain in the case of the Superior Courts. Black on Judgments (2 ed.), vol. 2, sec. 283.

*57Our statute makes the record and probate of a will, even in common form, conclusive as evidence of tbe validity of tbe will, until it is vacated ■on appeal or declared void by a competent tribunal. Rev., 3128, 3129.

It is well settled tbat a judgment or decree admitting a will to probate, wben made by a court having jurisdiction thereof, may be attacked •only in such direct proceedings as are authorized by statute, and that it is not open to attack or impeachment in a collateral proceeding. More ■specifically, it is not permissible to collaterally attack such a judgment ■or decree o.n the ground that certain errors and irregularities exist, which, if shown really to exist, would, at the most, make the judgment •only, voidable, such as an alleged fact that the persons interested were not all duly cited or given notice or made parties; that the probate was granted on insufficient proof, as where it was granted on production of a copy instead of an original will; that the execution of the will was defective and insufficient; that the order admitting the will to probate does not use the exact language oí the statute; that there was no formal entry of the judgment; that the decree contained a translation of the will into English, or that the jury were erroneously instructed, and xeturned a verdict contrary to the evidence; but when irregularities of this nature are alleged in a collateral proceeding, the court will indulge in liberal and conclusive presumptions in favor of the sufficiency of the record and proceedings, such as a presumption that proper and ■sufficient notice was given; that the petition for probate was properly filed; that orders continuing the hearing were regularly made; that the •execution, attestation, and proof of the will were sufficient; that the testator possessed testamentary capacity, and that the instrument probated is sufficient to pass such property as it purports to pass. It is ■even held that fraud is -not a ground of collateral attack, as the identity, validity, and sufficiency of the instrument propounded as the last testamentary act of the deceased is the very question determined; and while a. judgment or decree relating to the probate of a will is open to collateral impeachment, when it has been rendered by a court which was wholly without jurisdiction, the determination, by the officer or court probating the will, that the requisite jurisdictional fácts, .such as the residence of the testator at the time of his death, or the situation of his property within the county, exist, is conclusive and not open to collateral attack. 40 Cyc., 1377 and 1378.

An order or decree of a surrogate, or probate, or orphan’s court, jurisdiction having attached, is not -examinable in any collateral proceeding. In fact, the orders and judgments of probate courts concerning matters over which they have jurisdiction are no more open to collateral attack than are the orders and judgment of other courts of general jurisdiction; they must have accorded to them the same intendments *58and favorable presumption wbicb attend tbe judgments of courts of general common-law jurisdiction. Tbis rule applies to an order admitting a will to probate. 1 Black on Judgments (2 ed.), sec. 250.

Tbis Court beld, in Fann v. R. R., 155 N. C., 136, tbat, in tbis day and time, and under our present system, it seems to be generally conceded tbat tbe decrees of probate courts, wben acting witbin tbe scope of tbeir powers, should be considered and dealt witb as orders and decrees of courts of general jurisdiction, and where jurisdiction over tbe subject-matter of inquiry has been properly acquired, tbat these orders and decrees are not as a rule subject to collateral attack. And to tbe same general effect was McClure v. Spivey, 123 N. C., 678, where tbe Court said tbat probate of a will by tbe clerk of tbe Superior Court is a judicial act, and bis certificate is conclusive evidence of tbe validity of tbe will until vacated on appeal or declared void by a competent tribunal in a proceeding instituted for tbat purpose. It cannot be vacated in a collateral manner, citing Mayo v. Jones, 78 N. C., 402. Stronger language, if possible, was used in tbe more recent case of Powell v. Watkins, 172 N. C., 244, where it was said tbat, “Tbe proceeding for tbe probate of a will is not regarded as an adversary suit mt&r partes, but is a proceeding in rem, in wbicb tbe jurisdiction of tbe court, in tbe exercise of probate powers, is exclusive, and an adjudication of probate may not be assailed or questioned in any collateral or independent proceedings.” Tbis has been approved in numerous cases. Collins v. Collins, 125 N. C., 98; McClure v. Spivey, 123 N. C., 678; Varner v. Johnson, 112 N. C., 570; McCormick v. Jernigan, 110 N. C., 406; Hutson v. Sawyer, 104 N. C., 1. Tbe Court ruled, in Batchelor v. Overton, 158 N. C., 397, tbe opinion being delivered by Justice Hoke, tbat notwithstanding tbe requirements of tbe. statute, it is very generally beld tbat wben a clerk of our Superior Court in tbe exercise of tbe probate powers conferred by statute, has general jurisdiction of tbe subject-matter of inquiry, as indicated in chapter 1, sec. 16, Revisal, and on application made has entered-a decree appointing an executor or administrator, and letters are accordingly issued, such decree is controlling and may not be successfully attacked or in any way questioned but by direct proceedings instituted for tbe purpose. Chief Justice Smith, in London v. R. R., 88 N. C., 584, a case on tbis question wbicb is generally cited and approved, states tbe rule to be well settled tbat tbe judgment of tbe probate court, in wbicb is vested exclusive jurisdiction to pass on wills of personalty (and in tbis State by statute of realty also) and to grant letters testamentary or of administration, is conclusive of tbe right determined, and is not exposed to impeachment collaterally in another court where tbe effect of tbe action is to be considered. A probate in common form, unre-voked, is conclusive in courts of law and equity as to tbe appointment *59of an executor and tbe validity and contents of a will; and it is not allowable in an action to show that another was appointed executor. This is the principle announced in the elementary books. "Williams on Exrs., 339; Toller, 76. The English law is the same, for Justice Buller, a judge of great renown, so announced for the judges, who were of the opinion, that the probate of a will is conclusive, until it be repealed, and no court of common law can admit evidence to impeach it. See London v. R. R., 88 N. C., 584.

The above principles are sustained by what was decided in Sumner v. Staton, 151 N. C., 198, and are fully in harmony therewith.

Our statute makes the record and probate of a will, even in common form, conclusive as evidence of the validity of the will, until it is vacated on appeal or declared void by a competent tribunal.

The Court, in dismissing the case for lack of jurisdiction and also because no cause of action cognizable by" it was stated in the complaint, decided correctly and its ruling is sustained.

This renders the question of the statute of limitations of no special importance, and we forbear a discussion of it.

Affirmed.