limited time be contested in such courts.27 Under the code such proceedings to contest the validity of a will may be designated as actions at law, yet they partake of the nature of proceedings in chancery and equitable principles are applied.28 § 1321. Construction of Statutes Giving Courts of Equity Jurisdiction to Hear Will Contests. The rule which prevailed at common law was that real property of a decedent vested in the heir at law or devisee, as the case may be, immediately upon the death of the owner, the heir or devisee being entitled to immediate possession and this right of possession could be tried in an action of ejectment, and if the claim was under the will of a decedent, the validity of the will could be contested in such action. Any decision regarding the validity of a will in such a contest was res judicata between the parties and their privies, but did not affect the rights of others who claimed an interest in the property.29 The probate of a will of personal property, however, involved the judicial determination of its character, and was binding upon all interested parties. Statutes regarding wills which grant to a court vested with ordinary law and equity jurisdiction the right to adjudicate the validity of wills of personalty vests in such courts a power which they do not ordinarily possess. At common law, jurisdiction over wills of personalty was vested solely in the 27 Indiana Annot. Stats. (Burns, 1901), § 2766; Stuckwisch v. Kamman, 166 Ind. 672, 77 N. E. 349; Kansas Gen. Stats. (1901), ch. 117, §§ 15-29; Medill v. Snyder, 71 Kan. 590, 81 Pac, 216; New York Code Civ. Pro., § 2653a; Lewis v. Cook, 150 N. Y. 163, 44 N. E. 778. 28 Medill v. Snyder, 71 Kan. 590, 81 Pac. 216; Eddie v. Parke's Exr., 31 Mo. 513; Gay v. Gillilan, 92 Mo. 250, 1 Am. St. Rep. 712, 5 S. W. 7. 29 See §§ 1182, 1183. ecclesiastical courts.30 At the present time in England, since the Land Transfer Act, 1897, and in the United States generally, the probate court has jurisdiction over wills of realty as well as of personalty, and the former practice that wills of realty could be tested only in an action at law does not now generally prevail.31 § 1322. The Same Subject: Such Statutes Are Special. A court of equity, independent of statute, has no jurisdiction to set aside a will or to revoke the probate thereof. If such courts are granted such authority by statute, but which is to be exercised within a limited time, such statute is a grant of jurisdiction rather than a limitation of law. 32 The established doctrine both in England and in the United States is that courts of equity, except when given the right by statute, have no jurisdiction to annul a will or to revoke its probate. Full jurisdiction is vested in the probate courts with a revisory power in the appellate courts over their adjudications.33 Statutes which authorize courts of ordinary equity jurisdiction to hear controversies regarding wills of realty, or to hear a contest regarding the validity of a will which had theretofore been admitted to probate before the court exercising probate jurisdiction, is an inno 30 State v. McGlynn, 20 Cal. 233, 81 Am. Dec. 118; Medill v. Snyder, 71 Kan. 590, 81 Pac. 216. In New Mexico the jurisdiction of the probate court is confined to personal estates. - Chaves v. Perea, 3 N. M. 71, 2 Pac. 73. 31 See §§ 1184, 1288. 82 Luther v. Luther, 122 Ill. 558, 13 N. E. 166; Storrs v. St. Luke's Hospital, 180 Ill. 368, 72 Am. St. 33 Kerrich v. Bransby, 3 Bro. H. L. Rep. 358; Webb v. Cleverden, 2 Atk. 424; Broderick's Will, 21 Wall. (U. S.) 503, 22 L. Ed. 599; Gaines v. Fuentes, 92 U. S. 10, 23 L. Ed. 524; Holden v. Meadows, 31 Wis. 284; Archer v. Meadows, 33 Wis. 166. vation of purely statutory origin, and all conditions prescribed for the exercise of the right of contest must be strictly followed. Such statutes are in their nature special, and such a contest may be instituted only in the manner and within the time limited by the statute.34 §1323. The Same Subject: No Right of Contest After Time Limited by Statute. Where the statutes authorize the validity of a will to be contested within a limited time after it has been admitted to probate, by a suit in equity or proceeding designated as an action at law instituted in the courts of ordinary law and equity jurisdiction, the action must be taken within the time prescribed by the statute. Such right of action is a grant of power and the conditions imposed by the statute must be strictly applied.35 The right to institute such proceedings is not a vested right, and the legislature may at any time abrogate it by statute. The law prevailing at the time the action is brought is the one which controls, not the one in force at the time the will is first admitted to probate.36 Although the statute allows an extension of time within which to institute proceedings in favor of one under disability at the time the right of action accrues, such extension does not inure in favor of those not under disability; 34 Medill v. Snyder, 71 Kan. 590, 81 Pac. 216; Cartwright v. Korman, 45 Kan. 515, 26 Pac. 48; Hill v. Board of Supervisors, 119 N. Y. 344, 23 N. E. 921. 35 McArthur v. Scott, 113 U. S. 340, 28 L. Ed. 1015, 5 Sup. Ct. 652; Sharp v. Sharp, 213 Ill. 332, 72 N. E. 1058; Waters v. Waters, 225 Ill. 559, 80 N. E. 337; Farril v. 36 Storrs v. St. Luke's Hospital, 180 Ill. 368, 72 Am. St. Rep. 211, 54 N. E. 185; Sharp v. Sharp, 213 Ill. 332, 72 N. E. 1058; Clowry v. Nolan, 221 Ill. 458, 77 N. E. 906. and conversely, proceedings by those not under disability will not affect the right of those entitled to an extension of time, such as a minor without a legal guardian, to thereafter institute proceedings.37 Where the statute provides that the validity of a will or its probate is conclusive if the same be not contested within a specified time after probate is granted, no attack upon the will or its probate, in the probate court or elsewhere, will be allowed after the time limited by the statute.38 Irrespective of statute, the equitable doctrine of laches applies, and where an heir or one interested in the estate rests upon his rights for an unreasonable time or acquiesces in the settlement and distribution of the estate, he is bound by the decree of the court.39 § 1324. Time Within Which Contest Must Be Instituted. Any interested party may contest the validity of a will at the time it is offered for probate. Under the English practice, if the will be first proved in common form, interested parties may at any time thereafter require it to be proved in solemn form.40 In most of the jurisdictions in the United States where the English practice does not prevail, by statute the validity of a will may be con 37 Ellis v. Crawson, 147 Ala. 294, 41 So. 942; Spencer v. Spencer, 31 Mont. 631, 79 Pac. 320. A permanent non-resident and wife of the subject of a foreign nation is not within the term "absent from the state," so as to allow such a person an extension of time within which to institute a contest.-Bell v. Villard, 48 Misc. Rep. 587, 97 N. Y. Supp. 244. 38 Thompson v. Samson, 64 Cal. 330, 30 Pac. 980; Estate of Learned, 156 Cal. 309, 311, 104 Pac. 315; Medill v. Snyder, 71 Kan. 590, 81 Pac. 216. 39 Samson v. Samson, 64 Cal. 327, 30 Pac. 979; Camplin v. Jackson, 34 Colo. 447, 83 Pac. 1017; Lilly v. Townsend, 110 Mich. 253, 68 N. W. 136; Corby v. Trombley, 110 Mich. 292, 68 N. W. 139. 40 See §§ 1291-1295. tested after its admission to probate within a specified time, either by proceedings at law or in equity or by an attack in the probate court. Such statutes are special. General statutes of limitation found in the laws of various states ordinarily relate to the prosecution of actions generally and of the enforcement of remedies which such laws prescribe and regulate. Special statutes must usually be followed literally in respect to any time conditions which they impose. A statute which concerns itself primarily with the creation and regulation of jurisdiction and procedure regarding matters of probate and administration and which makes the probate of a will conclusive and binding and establishes title to real and personal property, although providing that a will may be contested within a specified time, is not affected by general statutes of limitation.12 The statute may provide for a direct attack upon the probate of a will proven in common form, by appeal or re-examination in solemn form within a specified time after the date of the decree, such as one year thereafter. Under such a statute a failure to petition for probate in solemn form within the designated time precludes all parties from making such a direct attack upon the probate. A probate court, however, has authority to set aside its decrees in certain cases upon a proper showing, but the plaintiffs must, in such cases, show that they are entitled to relief upon some substantial ground, such as 41 Cartwright v. Korman, 45 Kan. 515, 26 Pac. 48; Hill v. Board of Supervisors, 119 N. Y. 344, 23 N. E. 921. 42 Evansville Ice etc. Co. v. Winsor, 148 Ind. 682, 48 N. E. 592; |