#### WILLIAM J. ARMSTRONG AND WIFE *vs.*MOSES BAKER AND OTHERS.

A probate of a will in common form cannot be set aside on a petition for a reprobate, without shewing some reason, why the former probate was wrong and should not have been allowed.

The mere fact, that all the parties interested in the estate of the deceased were not cited in the original probate is not, of itself, a sufficient ground for a re-probate.

Especially the Court will not set aside the probate in common form, upon the petition of the widow, who admits that the will was properly proved, but desires a re.probate to enable her to enter her dissent within six months thereafter.

Appeal from the Superior Court of Law of Edgecombe County, at the Fall Term, 1848, his Honor Judge Dick presiding.

This is an application to call in the probate of a script as the will of David G. Baker, deceased, which was granted to Moses Baker as the executor. The deceased died in September, 1S44, leaving a widow, Catharine, and their four infant children. There is no copy of the in*110strument in the proceedings ; but it appears from the all-legations, that it was executed in the last illness of the deceased, and shortly before his death, and that it was attested by two witnesses : that by it, the deceased gave his estate to his wife during her widowhood, and, at her death or marriage, to his children, with a provision, that as the children came of age they should have certain shares of the property allotted to them respectively : and that Moses Baker, the father of the deceased, was appointed executor and guardian of the children, [t was proved by the oath of the executor and the subscribing witnesses in the County Court at November term, 1844. Under it the widow remained in possession of the estate, consisting of land, slaves, and other chattels, until her intermarriage with Wm. J. Armstrong on the 3rd of February, 1846. They instituted the present proceedings on the 12th of the same month.

The allegation states: that the probate was had without citing the party, Catharine, to be present at the propounding of the script; that for a considerable time alter the death of her husband, she was so overwhelmed with grief at her bereavement, that she took little interest in ascertaining her rights either under the instrument or in respect to its probate : that some months before her second marriage she was advised, that she might have the probat.e revoked, and that the script should he repro-pounded, in order that she might offer such objections to the same as she should be advised, or, in case she could not successfully oppose it, that she might be enabled to dissent from it after its proper probate : that she omitted, to institute proceedings immediately for that purpose by reason of an agreement of the executor and guardian, Moses Baker, to come to a compromise with her at November term, 1S45, of the County Court; with which he afterwards refused to comply.

The allegation then insists, that, as widow, the party *111Catharine, had a right to a day in Court to show cause against the probate of the supposed will; and that, by reason that the probate passed without any citation to her, it was not binding on her, and she was entitled of common right, to have the same called in.

Moses Baker put in a responsive allegation. It states, that the party deceased duly executed the instrumentas his last will and testament, when he had perfect disposing, mind and memory, and that it was duly attested by the witnesses : that the party Catharine had full knowledge of the contents of the instrument, and, indeed, that' it was made at her request and in her presence, and that the dispositions were adopted chiefly at her suggestion ; that alter the death of the deceased she expressed herself to be fully satisfied with the provision for her, and the desire that the instrument should be proved at the next Court, and that she knew it would then be propounded; and, in fact, one of the subscribing witnesses went to Court at her instance and by her assistance, that he might then prove it: that it was for those reasons, and those alone, that this party did not take out a citation for the said Catharine: that immediately after Court she was informed by the party, Moses, and several other *persons,*that the will had been proved, and also that she might dissent from it within six months after the probate : that during the whole period she rejected the advice with displeasure, and declared her determination not to dissent, as the will had been made in conformity with her wishes, expressed to her late husband, and she was satisfied \\i h it: that she continued so to express herself for some months after May term, aforesaid, and until she began to receive the attentions of suitors and conceived the purpose of marrying again : that the party, Moses, made no compromise nor any agreement for a compromise in the premises.

*112Both in the County and Superior Courts there was an order to call in the probate, and the executor appealed to this Court.

*B. F. Moore,*for the plaintiffs.

*Whitaker,*for the defendants.

Ruffin, C. J.

Armstrong and wife took no proofs. The executor examined several witnesses ; but it is not necessary to state this evidence particularly, or further than to remark generally, that it substantially sustains the case made in the executor’s allegation. The Court, however,-deems the original allegation so essentially defective, fhat upon its face it ought to have been rejected— taking into consideration the vagueness of the terms in which the compromise is spoken of in it and the total failure of proof on the point. The whole force of the allegation consists in the fact, that probate was granted without formal citation to the widow. It is contended, that of common right she may, for that reason alone, have the probate recalled and require one in solemn form.

The Court does not accede to that position. It is clear, that in England a sentence in a probate Court concludes all who are privy to the proceedings, that is, who have a knowledge of them, either actual or by an allegation put in by the party, or by a citation on file, or by proof of witnesses. The cases on the subject were all looked into in *Redmond*v. *Collins,*4 Dev. 430, and the rule stated as it now is. Those cases had been,, to a considerable extent, recognised here in the cases of *Dickerson*v. *Stewart,*1 Mur. 59, *Mass*v. *Vincent,*1 Law Rep. 414, and *Jeffreys*v. *Alston,*Id. 634; in which it was held that the application for reprobate, by one not a party to the probate, must be supported by an affidavit of merits, as there was a discretion in ordering a- second probate, and» therefore, the Court must look to all the circumstances. *113It ought therefore to appear in an allegation of this kind, that the person was not cognisant of the probate complained of, or, at all events, some other satisfactory cause must be assigned for not having intervened. Without such a statement it must be assumed, that the party was privy to the propounding of and probate of the wilh This says, indeed, that she was much overwhelmed with sorrow at the time, and took no concern in the probate and provisions of the will. But the probate was about a month after the husband’s death, and, without evidence to the contrary, it must be supposed that in the course of that period she became capable of giving such attention, to the rights and duties arising out of her condition, as a widow and a mother, at least,' as to seek proper advice' respecting them. It appears in fact in the executor’s allegation and proofs, that she not only had knowledge of the contents and probate of the will, but was active both in procuring its execution and probate. If this, then, were the application of one, as next of kin, instead of being that of the widow, it would not be sufficient to disturb a probate obtained, thus, at the party’s instance.

But the principle would seem, in our law,, to operate more strongly against the widow than the next of kin. For the right to interfere in a question of probate belongs to a party in interest;. which must mean some person, whose rights will be affected by the probate of the instrument, to- the prejudice of the party. But the statute allows a widow to dissent from her husband’s will, and, if she signify it within six months after- the probate, remits her to her dower and distributive share. Hence it would appear, that, in a legal sense, she can have-no interest in contesting the probate ; for it is at her own election to abide by or refuse the provision for her. Therefore, widows never become parties to issues of *devisavit vel non*in opposition to the will — having no interest in the dispute. This is the first instance, that is known, in *114which a widow has in any way attempted to interfere with a probate. By dissenting she gets clear of the will at once, whether it be good or bad. By not doing so she elects to take under it, and, it would seem, ought to be concluded from asserting any right in opposition to it.

But, whether these suppositions be correct or not, the Court holds it clear, that in the case made in this allegation the widow has no right to disturb the probate. There is no statement in it, which in the least impeaches this instrument as not being in fact and law the will of the party deceased. No reason whatever is assigned, why it should not be admitted to probate, either in respect *to*the *factum*or capacity of the party. Indeed, it is admitted by the counsel, that the will is good, and the party would not oppose another probate, but allow it to pass of course. Then, to what purpose shall the probate be revoked ? It is avowed, that it is for the single one of enabling the party to enter her dissent. It could not be yielded without further examination, that the widow is not concluded by her not dissenting in due time from the first pi’obate, and that her time might be enlarged to six months from the reprobate. But, supposing it could, the probate ought not to be called in for such a purpose merely. A proceeding of this kind is sustained upon the principle, that injustice has been done to those who would be entitled to the estate, if there were no will, by improperly admitting to proof a paper as a will, which in truth was not the will of the deceased. The sole foundation for recalling a probate is, that by allowing it to stand, it would be a prejudice to persons, who would succeed to the property if there were no will and who can show that this is no will, if allowed the opportunity. That is the only consideration, which ought to induce a Court of Probate to annul its previous acts ; for the probate in common form is not void, but is valid unless impeached ; and it ought not to be impeached by any one, who cannot al*115lege, that in point of fact or law it was wrong. Therefore a widow, at all events, cannot have one probate of her husband’s will recalled merely to let another pass— as it must do upon the ease made by her; For, in such a case, the judgment does not arise from the first probate of a good will, but from her election to take under it or her laches in not signifying her dissent. To authorise such a proceeding, it ought to be really for the purpose of determining a question between a will and an intestacy, and not for that of merely affording to the widow another election to hold under or against the will.

For these reasons the Court holds, that the decisions in the Courts below were erroneous, and must be reversed; and the original probate must stand. This must be certified to the Superior Court to the end that a *procedendo*may thence be awarded to the County Court to make the proper orders in accordance herewith.

Per Curiam.-Ordered accordingly.