#### ROBERT ETHERIDGE et al. vs. WILSON CORPREW’S EX’RS.

The probate of a will in common form is a temporary measure, for the. protection of estates, and any person interested in the estate, either by force of the will, or by consanguinity, may, of common right, institute proceedings to have a probate in solemn form.

This right may be forfeited by a long acquiescence in the probate in common form.

Where more than ten years had elapsed from the death of the decedent to the filing of a petition for a probate in solemn form, it appearing, that for nearly all that time, the petitioners had been under the disabilities of coverture, absence beyond seas, residence in another State and lunacy, it not appearing when petitioners had actual notice of the death of their kinsman or of the will or probate, Held, that the delay to institute proceedings under these circumstancess, did not work a forfeiture.

Where actual notice is relied on as a ground of such forfeiture of right, it must be alleged and proved by the party seeking to take advantage of it.

Petition for tbe probate of a will in solemn form,' beard before bis Honor Judge Saunders, at tbe last Superior Court •of Currituck.

Tbe petition was filed in tbe County Court, whence it was brought by appeal of defendant to tbe Superior Court. It sets forth that the petitioners are the next of kin of John Wheatly, who died in 1843, as they say, intestate. That a few days after bis death, defendant’s testator exhibited a paper Writing, purporting to be the last will and testament of tbe said John, to tbe County Court, and bad the same proved in common form, without having cited tbe petitioners, or any of them, to witness tbe proceedings, or caveat the same. The petition alleges that the paper-writing in question, was all in tbe hand writing of Corprew, the defendants’ testator; that it was written in bis, decedent’s, last nioments, when no white person was near, and all his estate is given to Corprew, who is also appointed executor; that said John Wheatly was at all times a man of feeble intellect, and that at the time the will was written, be was very old, and bis mind so much impaired as to subject him to the entire control of his slaves ; that when the will was witnessed, their kinsman, said John, *15was too weak, from old. age and sickness, to know what he was doing, or to be intelligible to the subscribing witnesses.

The petitioners .allege that immediately after the death of John Wheatly, the defendants’ testator took possession of his whole estate, real and personal, which was a very large one, and Maimed and used the same as his .own, up to the time of his death, which occurred in July, 1854. That during nearly all that time they were under disabilities to sue for their rights in the premises; that the petitioners, Nicholas and Bobert Etheridge, were residents of another State, and still are ; that Eanny Etheridge, his sister, who lived with him, was insane for several years before his death and continued so up to her death; that she died about a year before the filing ®f this petition, and that administration was not taken as to her, until the term it was filed; that petitioner, Caleb Spann, was, until within a few months of filing the petition, beyond sea, and that the other petitioner, Sarah, a feme covert, was incapable of suing in her own name. They all allege that they are uneducated, and were not informed of their rights' until very recently, and that they are also all quite poor and unskilled in the forms of litigation.

They pray that an order may be made to have the said script re-propounded, to the end, that they may be able to show that the allegations above set forth are true; that the same was not the last will and testament of the said John Wheatly. Philip Northern and Miles Wilson, the executors of Wilson Corprew, are made defendants.

The answer of the defendants admits that plaintiffs are the heirs and next of kin of Wilson Corprew; that their testator did take probate of the last will and testament of John Wheatly in common form, without notice to the petitioners. They further answer, that they have no personal knowledge of any of the circumstances under which the will was drawn, but have understood that it was drawn up and executed by a competent person, and duly witnessed by two witnesses. They further say in their answer, “ that they now understand and believe that some of the parties were res*16ident out of the State; that one was a lunatic; another a feme covert, and that one of the next of kin is dead, and administration was granted as charged. That they know nothing of their education or knowledge of their rights, or condition as to estate.” They further admit, that their testator had possession of the estate of the said Wheatly, from the death of said Wheatly till his own death, which was, as alleged in the petition, from 1843 till 1854.

Much testimony is filed in the cause, but as none of it pertains to the disabilities of the parties, or the causes of the delay to petition for probate in solemn form, it is not deemed important to set it forth.

Upon the hearing in the Superior Court, his Honor being of opinion with the petitioners, affirmed the order of the County Court, and awarded a procedendo ; from which judgment the defendants appealed to this Court.

Smith, for plaintiffs.

Ilines, Jordan and Pool, for defendants.

Pearson, J.

As a matter of common justice, no one should bo deprived of his rights without an opportunity of being heard. Hence, no order, sentence or decree, made ex parte, is conclusive ; and all persons affected by it are entitled, £ of common right,’ to have it set aside.

Tire exigence of the estates of deceased persons, sometimes requires that probate of wills should be .taken before there is time to serve notice upon the next of kin, because of a present necessity that some one should represent the deceased, take charge of the estate, collect debts, pay creditors, &c. Por this reason a probate in £ common form,’ that is, without citation to the next of kin, or others who may be interested, is allowed. This probate is valid until it is set aside, and cannot be impeached collaterally; wherein it differs from the ex parte probate of a deed for the purpose of registration; because the Ordinary in England, and the County Court here, *17have exclusive jurisdiction of the subject matter, and the proceeding is in rem.

But such probate is not conclusive. To have that effect the probate must be in “ solemn formthat is, after citation, per testes ; or under our statute, in case of a cmeat, by the verdict of a jury. If the executor wishes to conclude the matter, he may, after probate in “ common form,” proceed to have citations issued and propound the will in “ solemn form.” Or the next of kin are entitled, of common right, to have such probate set aside, so as to give them an opportunity of contesting its validity, and having a probate per testes, or by the verdict of a jury. Bell v. Armstrong, 1 Addams 365, 2 Eng. Ecc. Rep. 139, Ralston v. Telfair, 1 Dev, and Bat. Rep. 482.

Tin's right of the next of kin may be acted upon at any time, unless it be forfeited, which may be done in two ways, i. e., by acquiescence, or by unreasonable delay after notice of the former probate.

Where the next of kin knew of the existence of the will and of the executor’s intention to take probate, and accepted a legacy after it was proven, he was allowed two years thereafter, “ upon bringing in the legacy,” to have the probate set aside and the script propounded in solemn form. Sib John Niouoll held these facts did not amount to such an acquiescence as would “ bar the exercise of this common right of the next of kin,” Bell v. Armstrong, supra.

Where the next of kin resided abroad, and had no notice of the will, or of the probate,until after it -was taken, and then filed a bill in Equity, seeking to establish a trust of the personal estate in his favor against the executor of the will, it was held this did not amount to an acquiescence, Ralston v. Telfair. Supra.

Where a widow not only had knowledge of the probate and contents of the will, but was active in procuring both its execution and probate, so that the probate was taken at her instance, and she took possession, under the will, of the estate, consisting of lands, slaves, and other chattels, all of wdiich wrere given to her during widowhood, and held possession for *18two years, at which time she married and filed her petition to have a probate in solemn form, it was held that these facts did amount to such an acquiescence as barred her right; especially as the re-probate was asked for, not under the expectation of defeating the will, but to get an opportunity to dis-* sent. Armstrong v. Baker, 9 Ire. 109.

Where a will was executed the day on which the testator died, and was admitted to probate in common form on the day after, and the next of kin were several in number, living at a distance from each other, and some of them were under disabilities of coverture and infancy, it was held that a delay of more than nine years was not so unreasonable as to bar their right to call for a probate in solemn form. Gray v. Maer,. 3 Dev. and Bat. 47.

lt is true, there is some conflict in the “ general remarks” made by the Judges who delivered opinions in these cases; but the decisions all stand well together and settle the law, so as to show beyond doubt, that the petitioners in our case, have a right now, to call for a probate in solemn form, so as to have the validity of the alleged will passed upon by a jury —a test to which it has not before been subjected.

A marked distinction is taken where probate has passed in common form, and where the will has been propounded and proved in solemn form, per testes, or upon issues submitted to a jury upon a cmeat entered by some of the persons interested, either upon citation or of their own accord. In the former, as we have seen, the next of kin are entitled, of common right, to have the probate set aside and the script propounded in solemn form. In the latter, as the script has already been proven in solemn form per testes, or by the verdict of a jury, one who has an interest, although he may not have been regularly made a party in the first proceeding, is not entitled, as of common right, to have the will proven in solemn form a second time, and the court will exercise a discretion in regard to his application. For instance, the former sentence will not be set aside on the petition of a legatee, or of one for whom the executor holds as trustee, because he was repre*19sented by tbe executor. Redmond v. Collins, 4 Dev. Rep. 430. So, where a caveat was entered by some of the next of kin, and by the father of three others who were infants, after verdict in favor of the will, the Court refused to set aside the probate upon the petition of the latter, filed seven years after-wards, although there was no citation on file for them, and their father had not been regularly appointed their guardian; but had acted bona fide in endeavoring to defeat the will, McNorton v. Robison, 9 Ire. Rep. 256. So, “ If an executor proves the will in solemn form, against certain of the next of kin, not having cited them all, the others, even although uncited, if to a certain extent privy to, and aware of, the suit, shall not put the executor on proof of the will, so once already proven, a second time.” Newell v. Weeks, 2 Phill. 224. These cases are all put on the ground, that the will has once been proven in solemn form. The distinction is plain, and may reconcile the general remarks above referred to. But, however that may be, the decisions, as we have said, settle the law in reference to our case.

The supposed will was executed on the same night that the testator died, and the probate was taken in common form a few days afterwards.

There is no allegation that the petitioners, or any of them, knew of the existence of the will before, or at the time of, the probate ; so, the idea of acquiescence is out of the question.

An interval of more than ten years elapsed between the probate and the present application, during which time the executor, who was also the universal legatee, had possession of the estate. lie died a short time before the petition was filed. The question is, does this delay, under the circumstances, operate as a forfeiture of the right of the petitioners ?

There is no direct allegation on either side as to the time when the petitioners, received information of ‘the death of their kinsman, the supposed testator, the existence of the supposed will, or of the fact that probate had been taken.

It is alleged by the petitioners that two of them were nonresidents at the time of the death of their kinsman, and have *20been ever since. Another was beyond seas, and remained abroad until a few months before the petition was filed. Another was under coverture, and is still so. And the other was non compos mentis for many years before the death of her kinsman, and continued so until her death, which occurred about a year before the filing of the petition, and no administration was taken upon her estate until the time at which the petition was filed. And there is a general allegation, that they were “ poor, uneducated, and have been uninformed of their rights until very recently.”

The respondents make no allegation as to the time when the petitioners were informed of the death of die testator, of the existence of the will, or of the fact that probate had been taken. They content themselves by averring, that “ they know nothing of the education of the petitioners, or of their condition as to estate, or their knowledge of their rights.” So, the proceedings furnish no data by which to fix a date, from which the time should begin to run. Certainly, delay cannot be considered as amounting to laches until the petitioners are fixed with notice; and as they are entitled of common right to have the script propounded for probate in solemn form, it was for the respondents to allege and prove all the facts necessary to establish a forfeiture of this right.

But the case does not stop here. The respondents admit tiiat two of the petitioners were non-residents, one was beyond seas, one a feme covert, and the other non compos mentis, as alleged in the petition; so that if it had been alleged and proved, that the petitioners had full notice the very day after the probate, these circumstances and disabilities are sufficient to account for, and do away with, the effect of the delay. It was not unreasonable, and does not operate as a forfeiture of their rights.

The fact that the executor and universal legatee died in the mean time, has no bearing. Laches may rather be attributed to him for allowing the matter to stand so long upon a probate in common form, when it was in his power to have a *21probate in solemn form, if lie wished to conclude the matter by giving the petitioners an opportunity of contesting it.

The counsel on both sides seem to have attached much importance to the allegations as to the execution of the will and the capacity of the testator. Much proof was taken in reference to them, which was heard in the Court below, and was read and commented on before us. It is proper to say, that the counsel have acted under a misconception in this respect. We presume it was caused by the “general remarks” above referred to, in Armstrony v. Baker, and for the sake of correcting it, have entered into a more full discussion than would otherwise have been necessary.

A moment’s reflection is sufficient to show, that the Court cannot be expected to try these questions in order to see whether they should be sent to a jury for trial. As is said in Gray v. Maer, “ upon the merits of the controversy we have neither formed, nor have a right to form, an opinion.” It is sufficient for us to say, the petitioners are entitled to have these questions tried by a jury. In this proceeding, a consideration of them is incidental merely, the main question being, have the petitioners forfeited their right by acquiescence, or unreasonable delay ? Consequently, the allegations in regard to the former, should rest simply upon the affidavit of the parties; whereas, proof should be taken in regard to facts tending to establish acquiescence or the time of notice, or the disability of the petitioners, or any allegation tending to account for the delay, if not admitted ; because these matters are to be passed on by the Court.

Per Curiam.

Judgment affirmed.