Mr. Justice Trotter
stated the case and delivered the opinion of the court.
1. The first objection which is made by the appellants to the judgment of the court below, is, that a first demurrer had been overruled, and therefore it was error to entertain a second one to the same bill. The judgment of the chancellor, which overruled the first demurrer, was, until reversed in the regular method, conclusive and binding, as much so as when pronounced upon any of the other questions which might arise in the cause, and it was, therefore, assuredly irregular to sustain the second demurrer, if it rested upon the same ground, and applied to the same proceedings. But there was an amendment which entirely changed the parties to the original bill, as well as the grounds of relief. • In the original bill, the administrator alone sought to impeach the decree complained of. In the amended bill, the heirs at law are made complainants. Now it is certain that the grounds of relief are much widened by this amendment; as the administrator could only recover the personal estate, whereas the heirs seek the real estate, and the rents and the forfeits. The amended bill was, therefore, materially variant from the first, and we are of opinion that it was competent for the chancellor to entertain -the second demurrer, if the new matter amendment, was objectionable. Was itllfilli^tWas, and that, according to well established ^ríaiples in pleadings in chancery, the heir cannot join the adnmusti^oigj^S^wlfcinal bill for relief and for an account of persSiMr;estate, and of ilie rents and profits of land, or for the delivew of real estate. There is no rule better settlea^an that thps^rsonal property of an intestate belongs to the adailmsmifor, and that the lands belong to the heir. The administrator cannot, therefore, sue for the land, nor can the heir maintain an action for the goods of the intestate. Have the parties upon the record in this case, a joint interest in the whole subject matter of the suit? Unquestionably they have not. If the heirs were to die pending this action, who is there upon the record to represent their interests? These principles have been repeatedly acted upon by the courts of chancery. In the case of Dunn v. Dunn, 2 Cond. Eng. Chan. Rep. 440, the complainant, who was an only son, and one of the heirs of the intes[156]*156tate, united with his sisters in a bill against his mother, who was the administratrix, for an account of the intestate’s real and personal property, and a demurrer for multifariousness was allowed. In Maud v. Acklom, in the same book, p. 441, the same principle was recognised, and the demurrer allowed. The counsel for the appellants, in answer to this objection, has referred us to the case of Fellows v. Fellows, 4 Cowen’s Rep. 682; but that case settles no principle which conflicts with the views already presented. The court expressly recognises the general rule that a demand in the same bill of several matters, distinct and different in their nature, against several defendants, cannot be allowed. That case was held not to be embraced by this rule, because the defendants, though unconnected, had a common interest centering in the point in issue in the cause. In that case, the point in issue was the fraudulent combination of the defendants with the debtor of the complainant, to protect the property of the debtor against the claim of complainant, by a fraudulent purchase. The debtor had sold separate portions of the property to several distinct persons, and the creditor made them all defendants, and the court held that they were jointly answerable, because they had a common interest in the point in controversy. And this is the only effect of the determination of the court, in the case relied on in 5 Johns. Chan. Rep. 267; and was made, in part, the ground of the decision in the case in Cowen. We decided this question in the case of Browder v. Carmichael’s Adm’r, at the present term, and we are satisfied with that determination.
Under this view of the case, we might content ourselves with an affirmance of the decree of the court below, without noticing the other grounds urged in support of the demurrer. But with a view of settling the merits of the cause, we will proceed to consider the principal objection to the present proceeding. It is urged that the decree of the court of chancery, which established the will of 1818, as the last will and testament of Thomas Calvit, under which Samuel Calvit derived his title to the whole of the property now claimed by the heirs of Lucretia Calvit, and which was founded on the verdict of a jury on the issue of devastavit vet non, is conclusive and binding upon all the world; and can never be impeached or inquired into in a collateral pro[157]*157ceeding, or in any new proceeding between the parties. In answer to this objection, it is insisted that Eliza L. Calvit was an infant when that decree was pronounced, and is consequently not bound by it absolutely, but is entitled to show cause against, or to impeach it, and that by an original bill. There can be no doubt that, in every correct decree against an infant, there is a nisi causa clause, and that the infant may, either before, or within six months after arriving at age, be permitted to file a new answer, or to impeach it by an original bill in the nature of a bill of review. The case of Casen v. Johnston, 1 Peere Williams, 736, is a full authority for this position. That was the case of a decree against a person who was insane, and therefore incompetent to put in an answer, or protest his rights. The chancellor permitted him to show cause against the decree, and to impeach it, because it was manifestly unjust and fraudulent; and he rémarks, generally, that the way for an infant to investigate a decree which has been erroneously rendered against him, and when the error is not in the judgment”of the court, but in the facts on which it was obtained, is, to file an original bill. It is, therefore, competent for an infant to proceed by original bill in a proper case for setting aside a decree improperly obtained. But it is said by the counsel for the appellees, that the verdict and decree in this case, take it out of this general rule, and that it is binding even upon infants. It will be proper, therefore, to consider what is the effect of a decree such as this? The 29th sect, of the orphans’ court law, Rev. Code, p. 35, provides, that when any will shall be exhibited to be proved, the court having jurisdiction thereof, may proceed immediately to review the probate thereof, &c. If, however, any person interested shall, within five years afterwards, appear, and by his or her bill in chancery, contest the validity of the will, an issue shall be made up, whether the writing produced be the will of the testator or not, which shall be tried by a jury, &c., whose verdict shall be final between the parties. The only saving in this section of the act, is a power in the court to grant a new trial, and a right to infants, &c., to contest the validity of the will in the manner prescribed, the like period of five years after the removal of their respective disabilities. Adults, then, have five years allowed [158]*158them after the probate of the will; and infants five years after they arrive at age, to contest the validity of the will.
There is much reason why the verdict in this case should be final against all persons. It is to suppress interminable litigation, and to give repose and security to titles, and therefore it is held in England, that when the will is established by a verdict on the issue devisavit vel non,
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Mr. Justice Trotter
stated the case and delivered the opinion of the court.
1. The first objection which is made by the appellants to the judgment of the court below, is, that a first demurrer had been overruled, and therefore it was error to entertain a second one to the same bill. The judgment of the chancellor, which overruled the first demurrer, was, until reversed in the regular method, conclusive and binding, as much so as when pronounced upon any of the other questions which might arise in the cause, and it was, therefore, assuredly irregular to sustain the second demurrer, if it rested upon the same ground, and applied to the same proceedings. But there was an amendment which entirely changed the parties to the original bill, as well as the grounds of relief. • In the original bill, the administrator alone sought to impeach the decree complained of. In the amended bill, the heirs at law are made complainants. Now it is certain that the grounds of relief are much widened by this amendment; as the administrator could only recover the personal estate, whereas the heirs seek the real estate, and the rents and the forfeits. The amended bill was, therefore, materially variant from the first, and we are of opinion that it was competent for the chancellor to entertain -the second demurrer, if the new matter amendment, was objectionable. Was itllfilli^tWas, and that, according to well established ^ríaiples in pleadings in chancery, the heir cannot join the adnmusti^oigj^S^wlfcinal bill for relief and for an account of persSiMr;estate, and of ilie rents and profits of land, or for the delivew of real estate. There is no rule better settlea^an that thps^rsonal property of an intestate belongs to the adailmsmifor, and that the lands belong to the heir. The administrator cannot, therefore, sue for the land, nor can the heir maintain an action for the goods of the intestate. Have the parties upon the record in this case, a joint interest in the whole subject matter of the suit? Unquestionably they have not. If the heirs were to die pending this action, who is there upon the record to represent their interests? These principles have been repeatedly acted upon by the courts of chancery. In the case of Dunn v. Dunn, 2 Cond. Eng. Chan. Rep. 440, the complainant, who was an only son, and one of the heirs of the intes[156]*156tate, united with his sisters in a bill against his mother, who was the administratrix, for an account of the intestate’s real and personal property, and a demurrer for multifariousness was allowed. In Maud v. Acklom, in the same book, p. 441, the same principle was recognised, and the demurrer allowed. The counsel for the appellants, in answer to this objection, has referred us to the case of Fellows v. Fellows, 4 Cowen’s Rep. 682; but that case settles no principle which conflicts with the views already presented. The court expressly recognises the general rule that a demand in the same bill of several matters, distinct and different in their nature, against several defendants, cannot be allowed. That case was held not to be embraced by this rule, because the defendants, though unconnected, had a common interest centering in the point in issue in the cause. In that case, the point in issue was the fraudulent combination of the defendants with the debtor of the complainant, to protect the property of the debtor against the claim of complainant, by a fraudulent purchase. The debtor had sold separate portions of the property to several distinct persons, and the creditor made them all defendants, and the court held that they were jointly answerable, because they had a common interest in the point in controversy. And this is the only effect of the determination of the court, in the case relied on in 5 Johns. Chan. Rep. 267; and was made, in part, the ground of the decision in the case in Cowen. We decided this question in the case of Browder v. Carmichael’s Adm’r, at the present term, and we are satisfied with that determination.
Under this view of the case, we might content ourselves with an affirmance of the decree of the court below, without noticing the other grounds urged in support of the demurrer. But with a view of settling the merits of the cause, we will proceed to consider the principal objection to the present proceeding. It is urged that the decree of the court of chancery, which established the will of 1818, as the last will and testament of Thomas Calvit, under which Samuel Calvit derived his title to the whole of the property now claimed by the heirs of Lucretia Calvit, and which was founded on the verdict of a jury on the issue of devastavit vet non, is conclusive and binding upon all the world; and can never be impeached or inquired into in a collateral pro[157]*157ceeding, or in any new proceeding between the parties. In answer to this objection, it is insisted that Eliza L. Calvit was an infant when that decree was pronounced, and is consequently not bound by it absolutely, but is entitled to show cause against, or to impeach it, and that by an original bill. There can be no doubt that, in every correct decree against an infant, there is a nisi causa clause, and that the infant may, either before, or within six months after arriving at age, be permitted to file a new answer, or to impeach it by an original bill in the nature of a bill of review. The case of Casen v. Johnston, 1 Peere Williams, 736, is a full authority for this position. That was the case of a decree against a person who was insane, and therefore incompetent to put in an answer, or protest his rights. The chancellor permitted him to show cause against the decree, and to impeach it, because it was manifestly unjust and fraudulent; and he rémarks, generally, that the way for an infant to investigate a decree which has been erroneously rendered against him, and when the error is not in the judgment”of the court, but in the facts on which it was obtained, is, to file an original bill. It is, therefore, competent for an infant to proceed by original bill in a proper case for setting aside a decree improperly obtained. But it is said by the counsel for the appellees, that the verdict and decree in this case, take it out of this general rule, and that it is binding even upon infants. It will be proper, therefore, to consider what is the effect of a decree such as this? The 29th sect, of the orphans’ court law, Rev. Code, p. 35, provides, that when any will shall be exhibited to be proved, the court having jurisdiction thereof, may proceed immediately to review the probate thereof, &c. If, however, any person interested shall, within five years afterwards, appear, and by his or her bill in chancery, contest the validity of the will, an issue shall be made up, whether the writing produced be the will of the testator or not, which shall be tried by a jury, &c., whose verdict shall be final between the parties. The only saving in this section of the act, is a power in the court to grant a new trial, and a right to infants, &c., to contest the validity of the will in the manner prescribed, the like period of five years after the removal of their respective disabilities. Adults, then, have five years allowed [158]*158them after the probate of the will; and infants five years after they arrive at age, to contest the validity of the will.
There is much reason why the verdict in this case should be final against all persons. It is to suppress interminable litigation, and to give repose and security to titles, and therefore it is held in England, that when the will is established by a verdict on the issue devisavit vel non, the court of chancery will declare it well proved, and that it ought to be established, and will grant a perpetual injunction. 11 Vez. 50, 52; 19 Vez. 499; Story’s Equity, 673.
In the Ecclesiastical courts in England a decision upon the probate of a will of personal property is held conclusive to the full extent to which it has been admitted to probate. And it is also held to be not traversable but conclusive evidence of the will. With us, courts of probate have equal jurisdiction over a testament of personal and a will of real property. Our statute makes the probate of the will conclusive evidence, and will not suffer it to be contested after four years, or, in the case of an infant, after five years from the removal of his disability. And it must be evident that where the validity of the will is contested, in the manner pointed out by the act, either before or after probate, the decree is absolute against all persons. This was the view taken of the statute of Virginia, which is precisely in principle like ours, by the court of appeals in the case of Nalle v. Fenwick, 4 Rand. Rep. 588. Seven years is allowed by the act of Virginia to contest the validity of the will after probate, and if it is not done within that time, it is held conclusive forever. But there is no distinction, and there cannot from the very nature of the act be any distinction between adults and infants. The case of Hodges et al. v. Bauchman, 8 Yerger’s Rep. 186, is a direct authority for the views here taken. That was a controversy respecting the validity of a will which had been admitted to probate in the county court of Sullivan county in Tennessee according to the provisions of the act of 1789 of that state. When the will was presented for probate, one of the heirs at law of the testator objected to its validity and at his instance an issue was made up according to the act of assembly to try the question. The issue was tried and found in favor of the validity of the will. Afterwards another of the heirs [159]*159filed his petition setting forth the fact that he and about twenty others tvere the heirs and distributees of the testator, and prayed that he on his own behalf and as guardian for five minors who were interested might be permitted to contest said will, and alleged that they had not been heard when it was admitted to probate. The executor pleaded the judgment of the county court on the issue of devisavit vel non, and the question submitted to the court was, whether this decision admitting the will to probate was binding upon the heirs who were not parties to the issue? It was decided in favor of the validity of the will. A writ of error was prosecuted, and the Supreme Court of Tennessee affirmed the decision of the court below. Judge Catron who delivered the opinion of the court observed that the question was, whether the verdict and judgment of the court of pleas and quarter sessions was conclusive upon all parties or only upon such as appeared in court and caused the issue to be made up. He says the proceeding is in rem; the probate is evidence of title without reference to parties. He says, and says truly, that the executor would be involved in interminable litigation, if every person interested in the estate could have a separate issue. It is essential to the practical efficiency of the courts of ordinary that their judgments in cases of probates should be binding in all courts, and if it were otherwise it might happen that some ten or twenty years after the trial, and after a distribution was had, their titles might be upturned. The act of assembly of Tennessee does not speak of parties, and the court in the case referred to, state that no such idea entered into the mind of the legislature. It is the duty of the court of probate to ascertain whether the will has been duly executed without reference to individuals interested. The probate is a proceeding for the ends of justice, of a public nature and conclusive on the whole world. This position is fully sustained by the cases referred to in the text in 1 Starkie’s Ev. 241, where the rule is stated to be that the sentence or decree of a court of ordinary and probate, provided it be final in the court in which it is pronounced, is evidence against all the world, unless it can be impeached on the ground of fraud and collusion. It was insisted by the counsel for the appellants that the issue and decree founded thereon is not binding, beoause by the act of the legislature as it is found in Turner’s Digest, p. 447, [160]*160sect. 34, and which is the statute which must govern this question, the same is not made binding and conclusive. The act referred to is in nearly the same language with that in the Revised Code, and though it does not by express enactment make the decree final, yet it is as much so upon the general principles which govern such decrees as if there had been an express provision to that effect.
The decree of the chancellor must therefore be affirmed, with costs to the appellees.