No. 17.

#### Isaac M. Brown, guardian, &c. plaintiff in error, *vs.*James Anderson, executor, and others, defendants in error.

[1.] A will is proven in *common*form when the executor presents it before the Ordinary, and in the absence of, and without citing the parties interested, produces witnesses to prove the same. It seems that it may be proven by the oath of the executor alone. Quere ?

L2.] To prove a will in *solemn*form, it is necessary that all parties interested in the estate of the decedent, be cited to “ witness proceedings” — that *172the will be produced — that the witnesses be examined, and that all parties in interest have Ihe privilege of cross-examination. A probate in *solemn form*is conclusive, unless procured by fraud and collusion, and may be made at the instauce of the executor or of the parties in interest.

[3.] A will is proven before two Justices of the Inferior Court upon the written oaths of the subscribing witnesses in vacation, without notice to parties in interest; and at the next regular term of the Court of Ordinary is, upon those affidavits, passed to record. Notice was given to the legatees of the application at the regular term of the Court to pass the will to record, but the witnesses were not produced and sworn. *Held,*that the will was not proven in *solemn,*form.

[4.] A party cannot enter an appeal in a cause pending in the Court of Ordinary without the consent of his adversary, until a decision is made by that Court ; but an appeal entered by consent before a decision, is valid ; and such appeal in cases where there is a plea in bar, and an answer to the merits, carries up both issues.

[5.] A judgment against the executor, sett:ng aside a will on a rule to prove it in *solemn*form, the will having been previously proven in *common form*and recorded, and the executor qualified, is binding upon the legatees, although not parties on the record, unless obtained by fraud and collusion on the part of the executor.

[0.] If, pending that proceeding, the legatees, who are infants, have a guardian *ad litem*appointed, who does not decline the trust, and is present in Court, although not made a party on the record, the judgment will be, on *that*otccoimi, "binding upon them.

In Equity, in Upson Superior Court. Tried before *Judge*Starke, November Term, 1852.

Mrs. Macbarine Bunldey executed ber will on tbe 18tb of January, 1850, leaving tbe larger portion of ber property to George W. Bunldey during his life, and after bis death, to bis children, tbe complainants in tbe bill; and also making bequests to tbe defendants in tbe bill. The will contains a legacy to James Anderson, who is in it nominated tbe executor. Mrs. Bunldey died, and tbe will was proven in common form by tbe oaths of tbe subscribing witnesses, before Thomas J. Bethel and Thomas Beall, Justices of tbe Inferior Court of Upson County, in vacation, on tbe 11th March, 1850.

A caveat was filed to the will during tbe May Term, 1850, of tbe Court of Ordinary of said County, by Samuel Barks-dale, a brother of Mrs. Bunkley. At tbe same term of tbe *173Court, George W. Bunbley was appointed guardian, *acl litem,*of his .minor children, the complainants. James Anderson, the executor-, had previously notified the legatees under the will, of his intention to offer the same for record at the said term of the Court. The caveat was overruled, and the will, upon the affidavits of the subscribing witnesses thereto, was admitted to record, and Anderson was qualified as executor. At the November Term, 1851, of said Court, Terrel Barksdale and Stephen ITarvey, petitioned for a rule *ni si,*calling upon the executor to show cause why he should not again prove the will, and caveating upon various grounds, in substance, as follows:

1st. The non-execution of the will by Mrs. Bunbley.

2d. The unfair conduct of Anderson, the executor and draftsman of the will, in the procurement of a legacy to himself.

3d. That the will ivas never read to Mrs. Bunbley.

4th. The joint improper influence of Anderson and George W. Bunbley, over the testatrix.

5th. The testamentary incapacity of the testatrix, &c. all of which grounds were substantially embraced in the first caveat to the will, filed by Samuel Barksdale.

The cause was continued, and on the 18th day of November, 1850, the rule *ni si*was granted.

At the January Term, 1851, of the said Court of Ordinary, Anderson, the executor, answered the rule *ni si,*traversing the charges made in the caveat, and insisted that the will had been proven in solemn form, and that the'judgment on the first caveat Avas conclusive, &c.

At the same term of the Court, and without a decision by the Court, it was agreed by the parties that the rule *ni si*and ansAyer be carried to the appeal by consent, and that if the Superior Court should overrule the estoppel pleaded by Anderson, the executor, that the caveat contained in the rule *ni si*be considered on the appeal, a caveat to the will, and the caveators be allowed to make any amendment they deemed proper, and Anderson to traverse the caveat, and the same to *174stand foi* trial in the Superior Court as though it had been decided in the said Court of Ordinary.

On the 25th March, 1851, at Chambers, Judge *StarJee,*upon the representation of Obadiah O. Gibson, that the children of George *W.*Bunkley were largely interested in the cause pending on the appeal, and that George W. Bunkley, their guardian *ad litem,*was dead, but previous to his death had engaged him* the said Gibson, to protect the interest of said children, and that Terrell Barksdale and Stephen Harvey the testamentary guardians of said children, declined to act for them in that capacity, appointed Matthew H. Sandwich, Clerk of the Superior Court of Upson County, guardian *ad litem,*for said children.

At October adjourned Term, 1851, Anderson, the executor, traversed the caveat. At the same term, Mary E. Barksdale, Terrel J. Barksdale, minor children of Horatio Barksdale, a brother of the testatrix, and others, ' were made parties to the cause pending on the appeal. During the same term, all objections to the caveat being withdrawn, the rule *ni si*was made absolute, and the executor ordered to prove the will in solemn form, and upon the issue “ *devisavitvel non',”*the Jury found against the will. At the May Term, 1852, of said Court, a new trial was granted; which judgment awarding the new trial was, by writ of error, carried to the Supreme Court, at Decatur, August Term, 1852, and by that tribunal reversed.

On the 15th July, 1852, the complainants, Martha A. Mary E. Caroline M. and John B. Bunkley, (minor children of George W. Bunkley, deceased,) by their guardian, Isaac M. Brown, filed their bill against Anderson, the executor, and Stephen Harvey and Terrell Barksdale, their testamentary guardians, setting forth the will of Mrs. Bunkley, the loan therein of a large portion of her property to George *W.*Bunkley during his life, and the devise and bequest thereof in remainder, to complainants. The bill sets forth the proceedings had in relation to said will in the Court of Ordinary, the re*175fusal of their testamentary guardians to act for complainants, ,&c.

The bill charges that the proceedings had on the last caveat were- illegal and void.

The bill prayed for a discovery and a decree directing distribution, &c.

To this bill the defendants pleaded the proceedings had on the caveat to the will as an estoppel.

The complainants demurred to the plea. The Court overruled the demurrer and sustained the plea, and this decision is brought up for review.

• Chappell, Hall & Rutherford, for plaintiff in error.

L. B. Smith and B. Hill, for defendants in error.

*By the Court.*

Nisbet, J.

delivering the opinion.

*We*are to determine whether the Circuit Judge administered the law when he overruled the demurrer to the plea filed by the defendants in the Court below. The defendants pleaded in bar, a judgment of the Superior Court of Upson County, upon appeal by consent from the Court of Ordinary, setting aside the will of Mrs. Bunkley, upon an'issue of *devisavit vel non.*The case originated before the Ordinary upon a citation to_ the executor, on the part of Terrel Barksdale and Stephen Harvey, parties interested in the estate of Mrs. Bunkley, calling upon him to show cause why the 'will should not be propounded for probate in solemn form. At the same time; they filed a caveat to the will, upon various grounds. The executor answered upon the order of the Ordinary, the rule calling upon him to show cause why the will should not be proven in solemn form, traversing the caveat, and pleading in bar of the right of the applicants to have the will'proven in solemn form, that it had already been proven in solemn form and passed to record. The question made on this plea in bar went to the Superior Court upon appeal. The judgment of the Superior *176Court on that question, which was involved in the judgment setting aside the will, being, as stated, pleaded in bar. of this bill, and the plea being demurred to, it is insisted that the demurrer ought to have been sustained, because:

1st. The Ordinary had no jurisdiction of the cause, because the parties were estopped from having the will proven, on the ground that it had already been once proven in solemn form, and if the Ordinary had no jurisdiction, the Superior Court could acquire none by appeal, and therefore, its judgment was void. We are, therefore, first to inquire whether there was a previous probate of Mrs. Bunkley’s will, *per testes.*As to this point, how stand the facts ? By authority of the Act of 1810, the will was presented to two of the Justices of the Inferior Court, Messrs. Bethel and Beall, by the executor, Anderson, in vacation, and proven by the written oaths of the subscribing witnesses. No notice to the parties in interest, whatever, was given. The Act of 1810, whilst it allows probate in vacation, requires the will to be passed to record at a regular term of the Court of Ordinary. *Cobb’s*N. *D.*284. At the next term after the probate, to wit: at May Term, 1850, the will was ordered to record upon tho written testimony of the witnesses, taken before Bethel and Beall, and the executor qualified. Whether they were present or not does not appear ; it is certain, however, that they were not examined. Notice of his intention to apply at this term for the record of tho will was given by the executor to the legatees. Was there, under these facts, a probate of this will in solemn form ? We are very clear that there was not.

[1.] A will is proven in common form when the executor presents it before the Judge, and in the absence of, and without citing the parties interested, produces witnesses to prove the same. In some Courts the will may be proven in this form by the oath of tho executor without more. Such probate, and it seems to me, with good reason, seems to be discouraged in the States of our Union, very generally. *Jarman on Wills,*215. 1 *Williams’ Executors,*205. *Swinb. PI.*6, §14, *p. 2.**177*Godolph. pt.*1 *ch.*20, §4. 2 *Black. Com.*508. 1 *Greenleaf’s Evid.*§518.

[2.] In England, to prove a will in solemn form, it is necessary that all such persons as have an interest in the estate of the deceased (as the widow and next of kin) should be cited to appear and witness the probation and approbation of the will; that it should be exhibited to the Court in their presence; that the witnesses should be sworn and examined secretly and severally, and that the adverse party have the privilege of cross-examination. There it seems that the examination is by commission, ordered by the Court, and the depositions are taken dowm in writing, which are afterwards published, and if the Judge finds the proof sufficient; he pronounces a decree in favor of the will. 1 *Williams’ Executors,*208, 209. *Swinb. Pl.*6, §14, *p.*3. *Grodolph. pt. -1, c.*20, §4. *Jarman on Wills,*217.

Exactly the same formalities are not required with us, but it is necessary with us that all parties' in interest be cited to witness proceedings; that the will be produced in open Court; that the witnesses be there examined, and that all parties in interest have the privilege of cross-examination. The probate in form of law, may be at the instance of the executor, or it may be at the instance of the parties in interest. The probate of a will in solemn form is conclusive; the executor cannot be compelled to prove it again, and although all the witnesses afterwards be dead, the will still retains its full force. Not so when proven in common form ; for in that case, the executor may be compelled by any party interested, to prove it *per testes.*The time within which this must be done, does not appear *í*o be certainly fixed; it is, howmver, by weight of authority, thirty you rs in England. *1 Williams’ Executors,*209. *Swinb. pt. 6,*§14, *p.*4. *Godolph. pt.*1, *ch.*20, §4. *Newde vs. Weeks,*2 *Phillim.*331, *note.*

[3.] According to the law then, neither the proof of this will as it was had in vacation, nor the proceedings before the Court at May Term following, nor both together, amounted to a probate in solemn form. The proof in vacation was not *178in solemn form, because nobody was cited there to witness the proceedings. The absence of notice is conclusive as to that. The legatees were notified that the executor intended to apply at the May Term of the Court, for.an order to admit the will to record; but it does not appear that the next of kin were notified ; whether all the next of kin, or any of them are legatees, we have no means of knowing. But farther, there was no proof of the will in solemn form at that term of the Court. It was admitted to record on the written oaths of the witnesses previously taken. They were not examined — it does not even appear that they were present. Of course the parties notified had no opportunity to cross-examine them, and that fact is conclusive against the probate being in solemn form. Nor, taking the whole as the transaction of probate, (which, I think, is the correct view of the matter,) was there a solemn probation of the will, because at no time, had the parties the opportunity of cross-examination.' In the first instance, they were not notified, and in the second, (if all were notified, of which we are not at all certain,) the witnesses wore not produced and sworn. So the Ordinary was not precluded by a previous probate in solemn form, from entertaining the application for a probate upon which the appeal arose, and the Court did not err in overruling the demurrer to the plea, so far as this question is concerned.

[4.] The ground in support of the demurrer upon which counsel relied with confidence, and upon which they put forth much of their acknowledged strength, is that the judgment of the Superior Court, setting aside the will, is void for the want of jurisdiction, because there was no decision of the Court of Ordinary upon which an appeal could be taken, either by consent or otherwise. This general objection -to the judgment, they divided into two. Denying first, that there was any appeal by which the Superior Court could take jurisdiction, because there was no decision in the case before the Ordinary; they farther insisted, that if there was an appeal which gave to the Superior Court jurisdiction, it carried up only the question in bar whether the probate first had was in solemn form *179or not, (which I have already discussed,) and did not extend to the question of *devisavit vel non,*and therefore as to that question the judgment was void for want of jurisdiction. It is not denied but that the parties agreed that the last question should go up, but it is insisted that it did not legally go to the Superior Court, because it was not' a question which had been reached before the Ordinary, at the time when the consent Ayas entered into to appeal, and Ayhich, had the cause proceeded in that Court, might not lwe been reached at all.

It becomes important, to a fair view of these points, to ascertain the precise *status*of the cause when the parties entered into the agreement to carry it to, the appeal, and to present the agreement itself. Some six months after the will Ayas passed to record, to Avit, at Nov,. Term, 1850, of the Court of Ordinary of Upson County, the petitioners applied for and obtained a rule *ni si.*calling upon the executor, Anderson, to show cause Ayhy the will should not be proven in solemn form, and setting forth divers grounds of *caveat*to it. At the January Term following, Anderson, the executor, answered the rule, by setting up the previous probate as conclusive, and claiming that it could not be opened, because it was a probate in solemn form of law; and also by traArersing the grounds of caveat. As the case then stood, and before any decision whatever was had in it, the parties agreed that the rule *ni si.*and answer, be carried to the appeal by consent, and that if the Superior Court should overrule the estoppel pleaded by Anderson, the executor, that the caveat contained in the rule *ni si.*be considered on the appeal a caveat to the will, and that the caveators be allowed to make any amendment they may deem proper, and Anderson to traverse the caveat, and the same to stand for trial in the Superior Court as though it had been decided in the Court of Ordinary. Upon this appeal by consent entered at the time, it Ayas the questions last stated originated., _ The issues made by the pleadings, were as I consider them, two.

1. Upon the setting up of the previous probate, which was an issue of laAV, and in the nature of a plea in bar.

*1802. Upon the allegations in the caveat against the will, which was an issue of *devisavit vel non.*

These issues were formed on the rule and caveat of the petitioners on the one hand, and the answer of the executor on the other. The pleadings in the Ordinary, are not technical; in this case they presented with sufficient distinctness, two questions for decision; the first on the plea in bar, and the second on the will itself. The former was preliminary, and if decided in favor of the executor, would discharge the rule and the cause"; but if decided against him, would leave the latter for a hearing and determination. No decision upon either was made by the Ordinary. And it is first claimed that for that reason the consent could not so carry the cause to the Superior Court as to give that Court jurisdiction. There are two constitutional provisions which relate to the appellate jurisdiction of the Superior Courts, in cases arising in the Courts of Ordinary.

There is a general grant of jurisdiction in cases"wbich may be pointed out by law, which arise in inferior judicatories, in the following words: “ And the said Superior Courts shall have appellate jurisdiction in such other cases as may be pointed out by law, in cases arising in inferior judicatories.” *Cobb’s N. D.*1121. Whenever, therefore, the Legislature authorizes an appeal in cases arising in inferior judicatories, the jurisdiction granted by the Constitution attaches. By the Act of 1805, appeals are authorized from the decisions of the Courts of Ordinary. *Cobb’s N. D.*283. The jurisdiction of the Superior Courts, upon appeals from the Court of Ordinary, is thus founded in a constitutional grant. Not content with this general grant, the framers of the Constitution farther provided for appeals from the Courts of Ordinary, in these words: “ The powers of a Court of Ordinary or Register of Probates, shall be vested in the Inferior Courts of each County, from whose decision there may be an appeal to the Superior Court, under such restrictions and regulations as the General Assembly may by law direct, &c.” *Cobb’s N. D.*1122. Here is a special grant of jurisdiction, with power in the Le-

*181gislature to regulate the appeal and to impose such restrictions upon the exercise of the right of appeal, as they may direct. In 1805, the Legislature prescribed,by law, the regulations and restrictions under which the right of appeal should be exercised. That Act provides, that in ca§e either party in the Courts of Ordinary, shall be dissatisfied with any decision thereof, such party may, within four days after the adjournment of the Court, be allowed to enter an appeal by paying all costs which may have accrued, and giving security to the Clerk of the Court for such further costs as may accrue by reason of such appeal. The Clerk is directed to transmit the appeal to the Clerk of the Superior Court of the County, ten days before the next Term. *Cobb’s N. D.*283. Now it is not to be questioned, but that a party is not entitled to an appeal from the Ordinary as matter of right, until there is a decision in that Court. The jurisdiction over wills and intestacies, is original and exclusive in the Courts of Ordinary, and cannot be exercised as an original jurisdiction by the Superior Court. No will, for example, can bo brought primarily before the Superior Court for probate ; it can reach that Court only through the Ordinary. In strictness of law, there can be no appeal until the Ordinary has fulfilled its functions, and acted upon the question. What I mean to say is, that neither party can, as against the rights of the other party, transfer a cause pending in the Court of Ordinary, to the appeal, before a decision in that Court. Both the Constitution, and the law make the decision itself the matter appealed from. If demanded, it ought not to be granted; and if granted, the Superior Court would unquestionably disclaim jurisdiction and dismiss it. If this could be done, the Superior Court would usm-p the original jurisdiction which the Constitution has confided to the Ordinary. Is an appeal by consent before a decision had, violative of these propositions ? We think not. What is the construction of an agreement such as was entered into in this case, that the cause shall be transferred to the Superior Court, and that the issues joined shall be there tried ?

It is equivalent to a confession of judgment by the mov*182ant in favor of liis adversary reserving the right of appeal. He declines the contest, and yields the points in issue. The other party, occupying the position of an appellee, on his part waives the payment of costs, and bond and security. In such a case, it is not the duty of the Court to proceed with the cause *in*invitum, any more than it is in the case of a confession. The Court consenting to the agreement, it is entered upon tho minutes, and has the effect of a judgment appealed from. If so, tho Court has exercised its jurisdiction, just as effectually in contemplation of law, as if the contestation had proceeded and tho judgment had been formally pronounced. Tho right to confess a judgment cannot be questioned upon principle. It yields the whole that is claimed by the adverse party, and is as effectual for his rights as a verdict. And it is recognized by the Judiciary Act of 1799. (Prince, 427.) Wo have detei’minod that a party may confess a judgment even after the cause is submitted to a Jury. (5 *Gteo. 21.*298). We have also determined, that a party has the right to appeal from a confession, reserving the right of appeal. (1 *Kelly,*278, 279.) In *Ross vs. Tedder,*we determined, that in a cause ponding in the *Superior Court,*it is competent for the parties to appeal by consent without paying cost or giving bond, and without affidavit of inability to do so. In that case, we hold that the costs and bond required by law are for the benefit of the appellee, and that he may rightfully waive them. (10 *Geo. R.*426.) The decision in *Ross vs. Tedder,*was limited to cases brought in tho *Superior Court.*We entertained doubts then, whether, in cases originating in other Courts, the Statute ought not to be strictly complied with, in order to give jurisdiction to the *Superior Court*on tho appeal. After the argument of this cause, those doubts are removed. The giving bond and the payment of. costs do not create the jurisdiction — it is in the *Superior Court*by constitutional grant. These things are conditions imposed upon the appellant by law for the benefit of the other party, and are precedent to the exorcise of the right. These conditions he may waive. Consent cannot confer jurisdiction, *183but if a party is exempted from a jurisdiction given by law, by reason of some personal -privilege, that privilege lie may waive, and doing so, the judgment rendered will bind him. 4 *Geo. R.*47. 4 *McCord’s R.*80. 5 *Geo. R.*497. 8 *Geo. R.*83.

Upon these views, we are satisfied that an actual decision by the Qrdinary was not necessary to tho validity of this appeal, and that Judge *Starke*was right when he declined to sustain the *demurrer*to the plea on that ground.

Upon the other point, to wit: that the issue on the *caveat*was not appealed on, because that issue had not been reached when the consent was made, and might not have been reached at all, we cannot entertain a doubt. That issue Avas made by the caveat and the executor’s traverse of the caveat. It was part and parcel of the cause, and it Avas not the less so because the matter pleaded in bar preceded it, and stood for adjudication as a preliminary question. It is true that if the parties had not appealed and tho case had taken the regular course, the Court of Ordinary might have determined the plea in bar in favor of the executor, and in that event no decision would have been made' on the caveat, and upon it the jurisdiction of the Superior Court could not have been invoked. But we have no right to assume that the decision of the Ordinary would have been in favor of the executor on the former question. When the consent Ava-s made, both questions were on tho record for consideration. The appeal carried up the case as it stood- — the whole case — and presented it for the consideration of the appellate Court, just as it stood beloAv. The determination of the issue on the caveat, the issue of *devisavit vel*non, Avas as much a contingency before the Superior Court on the appeal, as it was before tho appeal before the Ordinary. By the judgment of tho law, as Avell as by the express agreement of the parties, wo think the AArholo case Avent up. t

[5.] The remaining point made in favor of the demurrer is, that conceding the judgment of tho Superior Court to be a valid judgment, yet it is as to the complainants in the bill *res**184*inter alios*acta, because they were not parties to it. The bill is filed by the principal legatees under the will, asserting its validity, and asking' a decree that the executor, Anderson, account and pay their legacies. Their own testamentary guardian (who, the bill charges, had declined to act as guardian) and some of the heirs at law, the caveators included, are made parties defendants. If, indeed, they were not parties in the cause in which the judgment was entered, yet it seems to us that they are in privity Avith the executor, and judgments bind parties and privies. When this suit Ayas brought against the executor, calling upon him to prove the will *per testes,*and at the same time caveating it, he Ayas the qualified executor,, and the Avill had been proven. They recognize him as executor— they file their bill against him in that character — they claim under the will, and he is the legal representative of the testator. They were represented in Court by him so far as the validity of the will is concerned; they had their day in Court, and were heard through him on the issue- of *devisavit vel non.*It was competent, if they feared that the executor would not do them justice for them to have intervened pending the caveat to protect their interest. Being infants does not vary the rule, for they could have appeared by a *guardian ad litem.*They are precluded by the judgment *against the*executor unless they can shoAV fraud and collusion on his part. 1 *Williams on Executors,*212. *Billiston vs. Clarke,*2 *Cas. temp. Lee,*250.

[6.] The record discloses, that pending the suit on which the judgment Avas rendered, upon suggestion that their father Ayas dead, and that their testamentary guardian had declined to act, Mr. SandAAÚch, the Clerk of the Superior Court of Upson County, Avas appointed, by Judge *Starke,*their guardian *ad litem.*But, conceding that fact, the counsel say, that he was not made a party and took no part in the cause. There is no evidence that he declined *the*trust; as Clerk of the Court, he was necessarily present, and being present and witnessing the proceedings, Avith a right to become a party, and without being a party, with the right of cross-examining *185witnesses, they are bound by the judgment, and to this point, see *Newel and King vs. Weeks,*2 *Phillim,*224. 1 *English Ecclesiastical Rep.*239.

Let the judgment be affirmed.