Aldrich, J.
On August 25, 1913, Bridget A. Kelly made a last will and testament bequeathing all of her property to her then living children. The names of the children who were objects of her bounty, and the parties to this case are as follows: William Kelly, aged 49 years; Thomas Kelly, aged' 39 years; George T. Kelly (appellee herein) aged 36 years; Mary Josephine Dawson (afterwards known as Mary Josephine Gilbert) aged 40 years; Margaret Kelly Harr, aged 38; Alice Kelly Clare, aged 34. These children comprise the family of the testatrix, and it is to determine the validity of the last will and testament of the deceased testatrix that this action is brought. It is claimed on the part of the appellee, that the instrument probated in the county court was not the last will and testament of deceased; that the same had been written [514]*514and the signature of the deceased secured on August 25, 1913, at which time, and for many months prior thereto, the said Bridget A. Kelly was suffering from paralysis, etc. It appears from the record that Bridget A. Kelly had had a stroke of paralysis at the time she made the purported will on August 25, 1913. That she was in a weakened mental and physical condition appears to be true. Afterward a settlement was had among the children named and provided for in the alleged will, and all participated in this settlement with the exception of George T. Kelly. The settlement was had and entered into, and all agreed with one exception, as above stated, that the will should be probated and the following distribution should be had: To George T. Kelly, cash, $10; to Margaret Harr, cash, $2,250 and one-half of lot 7, block 2; to Alice Clare, cash, 2,250 and one-half of lot 7, block 2'; to "William Kelly $1,000, and an undivided half of lots 8 and 9, $1,250, total, $2,250; to Thomas Kelly, cash, $1,000, an undivided half of lots 8 and 9, $1,250, lot 8, block 2, $2,500, total 4,750; to Mary Josephine Gilbert, lot 7, block 22, $6,000, household goods and furniture, $250, residue of personal property, subject to debts, $7,390, total, $13,640.
It will be noted that in this distribution, under the will, George T. Kelly, contestant and plaintiff herein, received $10. Under the settlement finally agreed to between the heirs above mentioned, the will of Bridget A. Kelly was duly probated; all proceedings had as by law provided; executors discharged, and the proceedings in the settlement of the estate according to the provisions of the will were had entire. Then the absent son, George T. Kelly, comes back from California, where he had been residing for a year or more, and asks to have the probate of said will set aside, and the entire proceedings gone into again for the reasons heretofore set out. A trial was had, and the proceedings were dismissed, and plaintiff ap[515]*515peals to the district court, where trial was had and the finding made for the plaintiff, George T. Kelly. The other children (defendants herein) appealed from the decision of the district court to the supreme court, and we are now called upon to determine the issue, Was this will in question the last will and testament of the deceased testatrix? Was she of sound mind and disposing memory at the time this instrument in issue was executed? And did the county court have jurisdiction in the premises? Was the service by publication sufficient notice for the court to acquire jurisdiction to proceed to probate the will?
The will of the deceased testatrix ■ as probated in the first instance does not make any other or different provision for the plaintiff, George T. Kelly, than was made for him in the settlement between the other heirs. Really,.the one issue that is decisive of this case, and beyond which we do not have to go, is, Was there service, as required by statute, made on the absent heir, George T. Kelly, who at the time of his mother’s death was residing somewhere in California?
In probating a will, and in giving notice of such proceedings, the service is usually constructive. The provisions of the statute under which we are proceeding make it optional with the probate judge to get personal service by publication. The almost universal rule in this state in probate proceedings is to get service by publication in any legal newspaper printed in the county which the judge may select. This is a matter of precaution and of general interest to all parties concerned, for the reason that personal service only reaches the person served, and the statute requires that all parties claiming an interest, or interested parties, shall be served with a notice to appear at the proceedings in probate, and it is impossible for a judge, or the heirs, to know all interested parties, and so it is unsafe to depend upon personal -service, in this kind of a legal proceeding, and therefore it [516]*516is necessary to notify every one who might he interested, however small their interest may be. The safe thing is to get service by publication, and that operates to the same extent and is equally authoritative in giving to the court plenary jurisdiction upon every person who might be interested. The interest may be confined to heirs, devisees or legatees, or it may extend to others unknown to the county judge and to the petitioner.
Personal service jurisdiction would not be had unless the interested party was personally served, and by giving notice by publication this danger is avoided. In the instant case, the plaintiff claims that he never had any actual knowledge, or notice, of his mother’s death, or of the hearing of the probate of her last will and testament, and therefore the court at that time (which is the position of the plaintiff) had no jurisdiction to hear and determine whether or not the probated will, and testament was the last will and testament of the deceased testatrix. It is claimed that it was not her will, and that the court had never obtained jurisdiction over the plaintiff, and that the admitting of the will to probate, because of alleged defective service, gave to the court no jurisdiction to try and determine the issue here involved.
This identical question was before this court in the case of In re Estate of Sieker, 89 Neb. 216. Also this court has quoted with approval 2 Black, Judgments (2d ed.) sec. 635, the following: “The action of a probate court having jurisdiction, in admitting a will to probate or in rejecting it, is in the nature of a proceeding in rem, and so long as it remains in force, it is conclusive as to the due execution and the validity of .the will, both upon all the parties who may be before the court and upon all other persons whatever, in all proceedings arising out of the will or where the parties claim under or are connected with it.”
[517]*517The supreme court of Vermont said: “The proceeding is, in form and substance, -upon the will itself. No process is issued against any one; hut all persons interested in determining the state, or condition, of the instrument are constructively notified, by a newspaper publication, to appear and contest the probate; and the judgment is, not that this or that person shall pay a sum of money, or, do any particular ■ act, but that the instrument is, or is not, the will of the testator. * * * The judgment is upon the thing itself, and when the proper steps required by law arc taken, the judgment is conclusive, and makes the instrument, as to all the world (at least so far as the property of the testator within the state is concerned), just what the judgment declares it to be.” Woodruff v. Taylor, 20 Vt. 65.
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Aldrich, J.
On August 25, 1913, Bridget A. Kelly made a last will and testament bequeathing all of her property to her then living children. The names of the children who were objects of her bounty, and the parties to this case are as follows: William Kelly, aged 49 years; Thomas Kelly, aged' 39 years; George T. Kelly (appellee herein) aged 36 years; Mary Josephine Dawson (afterwards known as Mary Josephine Gilbert) aged 40 years; Margaret Kelly Harr, aged 38; Alice Kelly Clare, aged 34. These children comprise the family of the testatrix, and it is to determine the validity of the last will and testament of the deceased testatrix that this action is brought. It is claimed on the part of the appellee, that the instrument probated in the county court was not the last will and testament of deceased; that the same had been written [514]*514and the signature of the deceased secured on August 25, 1913, at which time, and for many months prior thereto, the said Bridget A. Kelly was suffering from paralysis, etc. It appears from the record that Bridget A. Kelly had had a stroke of paralysis at the time she made the purported will on August 25, 1913. That she was in a weakened mental and physical condition appears to be true. Afterward a settlement was had among the children named and provided for in the alleged will, and all participated in this settlement with the exception of George T. Kelly. The settlement was had and entered into, and all agreed with one exception, as above stated, that the will should be probated and the following distribution should be had: To George T. Kelly, cash, $10; to Margaret Harr, cash, $2,250 and one-half of lot 7, block 2; to Alice Clare, cash, 2,250 and one-half of lot 7, block 2'; to "William Kelly $1,000, and an undivided half of lots 8 and 9, $1,250, total, $2,250; to Thomas Kelly, cash, $1,000, an undivided half of lots 8 and 9, $1,250, lot 8, block 2, $2,500, total 4,750; to Mary Josephine Gilbert, lot 7, block 22, $6,000, household goods and furniture, $250, residue of personal property, subject to debts, $7,390, total, $13,640.
It will be noted that in this distribution, under the will, George T. Kelly, contestant and plaintiff herein, received $10. Under the settlement finally agreed to between the heirs above mentioned, the will of Bridget A. Kelly was duly probated; all proceedings had as by law provided; executors discharged, and the proceedings in the settlement of the estate according to the provisions of the will were had entire. Then the absent son, George T. Kelly, comes back from California, where he had been residing for a year or more, and asks to have the probate of said will set aside, and the entire proceedings gone into again for the reasons heretofore set out. A trial was had, and the proceedings were dismissed, and plaintiff ap[515]*515peals to the district court, where trial was had and the finding made for the plaintiff, George T. Kelly. The other children (defendants herein) appealed from the decision of the district court to the supreme court, and we are now called upon to determine the issue, Was this will in question the last will and testament of the deceased testatrix? Was she of sound mind and disposing memory at the time this instrument in issue was executed? And did the county court have jurisdiction in the premises? Was the service by publication sufficient notice for the court to acquire jurisdiction to proceed to probate the will?
The will of the deceased testatrix ■ as probated in the first instance does not make any other or different provision for the plaintiff, George T. Kelly, than was made for him in the settlement between the other heirs. Really,.the one issue that is decisive of this case, and beyond which we do not have to go, is, Was there service, as required by statute, made on the absent heir, George T. Kelly, who at the time of his mother’s death was residing somewhere in California?
In probating a will, and in giving notice of such proceedings, the service is usually constructive. The provisions of the statute under which we are proceeding make it optional with the probate judge to get personal service by publication. The almost universal rule in this state in probate proceedings is to get service by publication in any legal newspaper printed in the county which the judge may select. This is a matter of precaution and of general interest to all parties concerned, for the reason that personal service only reaches the person served, and the statute requires that all parties claiming an interest, or interested parties, shall be served with a notice to appear at the proceedings in probate, and it is impossible for a judge, or the heirs, to know all interested parties, and so it is unsafe to depend upon personal -service, in this kind of a legal proceeding, and therefore it [516]*516is necessary to notify every one who might he interested, however small their interest may be. The safe thing is to get service by publication, and that operates to the same extent and is equally authoritative in giving to the court plenary jurisdiction upon every person who might be interested. The interest may be confined to heirs, devisees or legatees, or it may extend to others unknown to the county judge and to the petitioner.
Personal service jurisdiction would not be had unless the interested party was personally served, and by giving notice by publication this danger is avoided. In the instant case, the plaintiff claims that he never had any actual knowledge, or notice, of his mother’s death, or of the hearing of the probate of her last will and testament, and therefore the court at that time (which is the position of the plaintiff) had no jurisdiction to hear and determine whether or not the probated will, and testament was the last will and testament of the deceased testatrix. It is claimed that it was not her will, and that the court had never obtained jurisdiction over the plaintiff, and that the admitting of the will to probate, because of alleged defective service, gave to the court no jurisdiction to try and determine the issue here involved.
This identical question was before this court in the case of In re Estate of Sieker, 89 Neb. 216. Also this court has quoted with approval 2 Black, Judgments (2d ed.) sec. 635, the following: “The action of a probate court having jurisdiction, in admitting a will to probate or in rejecting it, is in the nature of a proceeding in rem, and so long as it remains in force, it is conclusive as to the due execution and the validity of .the will, both upon all the parties who may be before the court and upon all other persons whatever, in all proceedings arising out of the will or where the parties claim under or are connected with it.”
[517]*517The supreme court of Vermont said: “The proceeding is, in form and substance, -upon the will itself. No process is issued against any one; hut all persons interested in determining the state, or condition, of the instrument are constructively notified, by a newspaper publication, to appear and contest the probate; and the judgment is, not that this or that person shall pay a sum of money, or, do any particular ■ act, but that the instrument is, or is not, the will of the testator. * * * The judgment is upon the thing itself, and when the proper steps required by law arc taken, the judgment is conclusive, and makes the instrument, as to all the world (at least so far as the property of the testator within the state is concerned), just what the judgment declares it to be.” Woodruff v. Taylor, 20 Vt. 65.
The statute under which we are proceeding is the decedent law of this state, and the procedure is different from that of ordinary civil actions as provided for in the Code of Civil Procedure. So it appears to us that, as a matter of law, the county court having fully complied with all the requirements of the decedent law of this. state in the matter of probate of a will, and having plenary jurisdiction to probate the will in question and to distribute the property under the plain provisions of this document as signed and executed by the deceased testatrix, August 25, 1913, makes the- proceeding in probate valid. To sustain the judgment and decree of the district court would simply overturn a uniform procedure in determining the rights of parties to real estate in the probate of a will.
The procedure taken, then, in this case at the time the will was first probated were proper statutory steps, and having jurisdiction over all the defendants at the time,- and having acquired jurisdiction of the plaintiff by publication, and of other interested parties, as by statute of this state provided in such cases, it fol[518]*518lows that the proceedings were regular and legal, and should not be disturbed.
We have carefully examined the record in this case and fully investigated the briefs and the many authorities cited, and we come to the conclusion, after full investigation, that the provisions of the Code of Givil Procedure cited by plaintiff cannot be followed; that the publication of the notice in this case was such as is contemplated by the decedent statute, and the order of the county court directing the publication was sufficient authority and gave it ample jurisdiction to proceed in probate as of and for the last will and testament of the testatrix. All of the heirs to this estate stipulated by and between themselves (with the exception of the plaintiff) to withdraw objection to. the receiving of this will in probate, and to take their share in accordance with the terms and provisions of the will, and of the settlement entered into; and under these terms and conditions, the court, having full jurisdiction in the premises, settled the matter by distributing the property, and the executrix and the executor were discharged; and if the court had jurisdiction to hear and determine these matters and to make necessary orders to distribute and divide this property among the heirs at law in accordance with the terms and provisions of the will, then it follows that the question of fraud, or undue influence, and lack of testamentary capacity are immaterial, and were in effect passed upon by the court in admitting the will to probate, for it was' the judgment in the probate proceedings that the testatrix had testamentary capacity; that she knew and remembered her relations, and obligations to her children, and determined for herself what share each one should have in the distribution of the estate. And the county court having jurisdiction to hear and determine this matter, it follows that the judgment and decree of the. district court must be reversed and remanded in accordance with this .opinion, and the [519]*519probate of the will and the distribution of property thereunder made by the county judge must stand as of and for the last will and testament of Bridget A. Kelly, testatrix herein.
REVERSED AND REMANDED.
Letton, J., not sitting.
Rose, J., dissents.