#### HERMAN NEWBERN and I. W. FISHER v. J. B. LEIGH, Trustee, and K. R. WINSLOW.

(Filed 11 October, 1922.)

1. Wills — Probate—Common Form — Conclusions—Statutes.

A will duly admitted to probate is conclusive as to its validity until vacated on appeal or declared void by a competent tribunal. C. S., 4145.

2. Same — Fraud—Caveat—Purchasers for Value, Without Notice.

Where, under a will duly admitted to probate, a devisee of lands has sold the same to a third party, and thereafter, upon caveat entered, the will has been set aside, the proceedings are in rem, and the purchaser for value and without notice of the fraud acquires a good title against the heirs at law of the deceased owner.

Appeal by defendants from Bond, J., at chambers, Elizabeth City, 20 May, 1922, from PasquotaNIC.

John L. Hinton was a resident of Pasquotank, and died in 1909, leaving a will, which was duly probated and recorded in said county 29 January, 1910. His children, Mary E. Hinton, E. L. Hinton, C. L. Hinton, E. V. Hinton, W. E. Hinton, and Ida Sawyer were the sole beneficiaries under said will.

Among other lands owned by the said John L. Hinton at the time of his death was this tract of 200 acres. E. L. Hinton acquired the interest of the other devisees under the will, and on IS March, 1913, conveyed it to D. E. Williams. On 5 May, 1915, D. E. Williams conveyed the same property to P. G. Sawyer, who conveyed it to Taylor and Hollowell. Taylor afterwards acquired Hollowell’s interest, and on 7 August, 1918, W. E. Taylor conveyed the property to K. E. Winslow, one of the defendants in this action.

On 30 September,-1918, a cavéat was filed to said will of John L< Hinton, by some of his grandchildren, the plaintiffs herein, who were not named in the will. The caveat was later sustained and the will set aside. In re Hinton, 180 N. O., 206.

On 2 September, 1920, the defendant K. E. Winslow sold said land to Fisher and Newbern, the plaintiffs in this action, and took a mortgage for the balance of the purchase money. Said Newbern and Fisher having made default in the payment of the deferred installments, J. B. Leigh, trustee in the deed of trust to secure said indebtedness, advertised the property for sale, when this action was filed by the plaintiffs and the defendants were enjoined from making sale of the property.

A motion to make the restraining order permanent was heard before Bond, J., who held that the defendant Winslow could not give a good title to the property, owing to the fact that the will of the said John L. *167Hinton, tbe original owner of tbe land, bad been set aside under tbe caveat filed in 1918; and continued tbe restraining order to tbe bearing, and tbe defendants appealed.

Aydlett & Simpson for plaintiffs.

W. A. Worth for defendants.

OlaRK, C. J.

Tbe fact tbat upon a caveat filed 3 December, 1919, tbe will of John L. Hinton was set aside cannot possibly affect tbe title of tbe defendants. There is no evidence nor claim tbat tbe devisees named in tbe will, probated in 1910, bad any knowledge or intimation tbat tbe will would be attacked, and there is no contradiction tbat these defendants, as well as all others in tbe chain of title to tbe said property, were purchasers for value before tbe caveat was filed, and without any notice of any defect in the will of John L. Hinton, and tbat they were in all respects bona fide purchasers. A purchaser for value without notice of fraud under a devise in a will duly probated and recorded takes a. good title.

Even were E. L. Hinton chargeable with constructive notice, this would not avail the plaintiffs in this action, for the first purchaser may have notice and take title accordingly, yet a second purchaser for value from him and without notice is a bona fide purchaser and takes a valid title. 2 Devlin on Deeds, sec. 746.

Tbe courts have even held tbat where a purchaser for value without notice of fraud conveyed property, tbe second purchaser gets a good title even though be bad notice of tbe fraud. Lanier v. Lumber Co., 177 N. C., 200; Arrington v. Arrington, 114 N. C., 166; Wallace v. Cohen, 111 N. C., 104.

C. S., 4145, referring to tbe previous section on wills and testaments admitted to probate, provides: “Such record and probate is conclusive in evidence of tbe -validity of tbe will until it is vacated on appeal or declared void by a competent tribunal.”

Tbe various purchasers of tbe land in question were not only bona fide purchasers for value without notice of any imperfection or irregularity in tbe will of John L. Hinton, but bad on tbe records a judgment of tbe probate court declaring tbe will to be genuine and tbe last will and testament of John L. Hinton, and they also bad before them tbe statute to tbe effect tbat tbe records of tbe probate court were conclusive evidence of tbe validity of tbe will.

Tbe question here presented is whether' purchasers for value and without notice of any imperfections or irregularities in a will which has been duly admitted to probate and adjudged to be valid and recorded, can have their title impeached by tbe fact tbat subsequent to their pur*168chase, the will has been set aside as invalid. It is true that this precise question has not been presented before in the courts of this State, but it has been repeatedly passed upon in the United States Supreme Court, and in other courts of the Union, and the decisions are uniform and, we think, in accordance with the ruling in this State upon analogous questions, that the bona fide purchasers without notice acquire a good title.

In Foulke v. Zimmerman, 81 U. S., 113, it was held that: “A probate of a will of realty in Louisiana, when the testator died domiciled in New York, is valid until set aside in the Louisiana court and the purchaser from the devisee of such will of real estate in Louisiana, while the order of the court of that state establishing the will remains in force, is an innocent purchaser, and is not affected by a subsequent order setting aside the will to which he is not a party.”

In Davis v. Gaines, 104 U. S., 386, which is quite a famous case, involving a large amount of property in the city of New Orleans (known as the “Myra Clark Gaines will case”), the Court held that a will having been admitted to probate by the court in accordance with the law ordering a sale of all the immovables of the deceased, which sale was made to a bona fide purchaser -for a valuable consideration was a judicial sale, and that title thereunder was not affected by the discovery and probate of a later will making a different disposition of the property.

The opinion in that case is a very exhaustive discussion of the subject, and cites numerous cases to the same effect. All the cases in fact hold that the proceeding establishing a will and ordering it to registration is in rem and binding upon all the world, especially as to innocent purchasers taking without notice and for value.

In Thompson v. Sampson, 64 Cal., 330, it was held: “Where the probate of a will is had, and the estate is distributed under the will, an heir, who, after removal of his or her disabilities, obtains a decree vacating the probate cannot follow the property devised in the hands of a bona fide purchaser for value from a distributee prior to the revocation and at a time when the proceedings were valid and binding.”

In Arterburn v. Young, 77 Ky., 509, it was held: “The title of a purchaser of real estate from a devisee is not affected by the Circuit Court’s reversal of a judgment of the county court, probating a will on an appeal prosecuted by the infant children of the testator more than five years after the rendering of the order of probate in the county court.” In that State there was a statute authorizing such action within five years. The Court takes notice that this is a statutory exception, but that there was no waiver of the rights of infants.

In Hughes v. Burris, 85 Mo., 660, where there was a similar statute giving heirs five years in which to attack a will admitted to probate, a conveyance by the devisee executed after the probate and within the five *169years was beld of no effect as against the beirs after the will was adjudged invalid. These two States are exceptions to the general rule to the extent of the statute.

In Steele v. Renn, 50 Tex., 468 (S. c., 32 Am. Rep., 605), it was held that a .purchaser of devised lands from the devisee under a will duly proved held a good title, as against absent heirs, though the will was .afterwards annulled as a forgery.

To the same effect is S. v. McGlynn, 20 Cal., 268. In that case is a ■very full and satisfactory discussion of the matter, and it is held: “The decree of the probate court admitting wills to probate is final and con-elusive as to the validity thereof, if not reversed by the appellate court, and it cannot be vacated or questioned by any other court, either incidentally or by direct proceedings for the purposes of impeaching it. NNills admitted to probate must be recognized and admitted in all courts to be valid as long as the probate stands.”

In Reeves v. Hager, 101 Tenn., 712, it was held that a purchaser from a devisee, under a will that has been admitted to probate in common form, cannot be deprived of his character of innocent purchaser by reason of the unusual nature of the provisions of the will so long as its probate is not assailed. In that case it was also held, in a full discussion, that “a purchaser who in good faith takes an absolute deed from a •devisee and pays full price for the property in ignorance of any infirmity in the will or other defect of title obtains a title superior to any right •or claim of an infant heir, who subsequently and before attaining his majority enters the contest, and has the probate in common form set aside and the will annulled; the probate of a will is a proceeding in rem and operates upon the subject-matter. Probate, even in common form, so long as it remains in force, binds all parties, whether adults or minors, and is conclusive of the testamentary character of the instrument, the testamentary character of testator, the due execution of the will, and as to all questions of fraud, imposition, and undue influence affecting the will.”

The case of Fallen v. Chidester, 46 Iowa, 588, has been cited as holding a contrary doctrine, but that case was decided upon the special provisions of the statutes of Iowa then in force, under which probate in that State did not establish, at that time, the testamentary character of the instrument, and hence did not give validity to a title based upon it.

The conclusiveness of the probate of a will is discussed in the notes to Schultze v. Schultze, 60 Am. Dec., 353; Michael v. Baker, 10 Idaho, 593, and Bowen v. Johnson, 73 Idaho, 53.

In 28 E. C. L., 375, sec. 376, the law is thus summed up: “The admission or rejection of a will to probate is a judicial determination of the character and validity of the instrument presented as a will, and *170is in effect a judgment in rem. Tbe decree of a probate court admitting a will to probate is final and conclusive if not reversed by tbe appellate court, or set aside and revoked, by direct proceedings, and cannot be questioned collaterally. Tbe courts of common law formerly went so far as to bold tbat tbe forgery of a will, wbicb bad been admitted to probate, could not be made tbe ground of an indictment until tbe probate had been revoked, but according to a later and sounder decision, though probate is conclusive until set aside, tbe disposition of tbe property does not protect tbe forger from punishment. Though it was otherwise at common law, in modern times tbe probate of a will being a proceeding in rem is conclusive not only on tbe parties and privies, but to all tbe world. Tbe next of kin will be bound by a sentence admitting a will to probate, although not a party to proceedings nor summoned Ho see proceedings’ if at tbe time of any prior contest to tbe probate, they bad notice thereof and did not intervene. Tbe executor in seeking to propound a will is in privity with tbe legatees claiming under an instrument, and a decree denying probate will be binding against him, even though they were at tbe time of tbe decree unable under such disabilities as coverture, or infancy, or even if at tbat time they were not in esse." This latter proposition is stated in Redmond v. Collins, 15 N. C., 430. Tbe opinion of Ruffin, C. J., in tbat case has been often cited since. See citations in tbe Anno. Ed.

In B. C. L., 377, sec. 378, it is further said, with copious citation of authorities: “Tbe probate of a will by tbe probate court having jurisdiction thereof is usually considered as conclusive of its due execution and validity, and is also conclusive tbat tbe testator was of sound and disposing mind at tbe time when he executed tbe will, and was not acting under duress, menace, fraud, or undue influence, and tbat tbe will is genuine and not a forgery.”

In 40 Cyc., 2110, it is held: “A purchaser for value from a beneficiary, or at a judicial sale under a will, is protected, even though tbe will is subsequently annulled.” It is also said, to tbe same purpose, in Hodges v. Bauchman, 8 Yerg., 186 : “An application for tbe probate of a will is a proceeding in rem, and tbe judgment of tbe court upon it is binding upon all tbe world until revoked or set aside.” To same purport, Scott v. Calvert, 3 How. (Miss.), 158; 3 Redfern on Wills, 63.

Tbe will of John L. Hinton was probated in January, 1910, tbe caveat was filed late in 1918, and in tbe interim tbe various transfers of tbe land bad been made by parties who were in no way connected with tbe estate of John L. Hinton. Tbe caveators are not laying any claim to tbe land in question, and are in no way interested in this suit. If titles to real estate can be set aside by tbe attack on a will which constitutes a *171link in the chain of title, it would shake the very foundations of real estate titles and the titles in which a will is a link would be always looked upon with doubt.

The order in this cause continuing the restraining order must be set aside and the action dismissed.

Eeversed.