ME. COMMISSIONER POOEMAN
prepared the opinion for the court.
This is an appeal from a judgment and decree revoking the-probate of a will, and from an order overruling a motion for a new trial.
James M. Spencer died in Deer Lodge county, Montana, October 12, 1891, leaving surviving him his widow, Nanny Spencer, his only daughter, Jane Porter, and his two sons, John O. and James E. Spencer. Afterwards a paper bearing date-September 22, 1891, and'purporting to be the last will and testament of said James M. Spencer, was offered for probate; and on December 5, 1891, an order of court was made admitting the same to probate, and appointing John O. Spencer executor thereof. At the time of the death of James M. Spencer all the children were over the age of twenty-one years, except James E. Spencer, who was born November 8, 1878. Under the terms of this, alleged will, $5 were bequeathed to James E. Spencer, $5 to Jane Porter, and all the rest, residue and remainder of' the estate was bequeathed to the widow, Nanny Spencer, and the-[636]*636elder son, John C. Spencer, to be equally divided between them. The estate was administered in accordance with the terms of this alleged will, and the executor was finally discharged from his said trust in 1894.
The validity of the will was not questioned by any one until James R. Spencer, having attained his majority, and within ■one year thereafter, filed his petition contesting the will, and, as appears from the amended petition on which the case was tried, limiting the contest to two grounds: (1) Lack of mental capacity; and (2) fraud, menace and undue influence of John 0. Spencer. The answer put in issue the facts stated in the petition, and alleged the due execution of the will. The case was tried to a jury, which returned findings to the effect (a) that James M. Spencer on the 22d day of September, 1891, did not have sufficient mental capacity to make a testamentary disposition of his property; (b) that he did not have sufficient physical strength to execute a will; (c) that he did not subscribe his name at the end of the instrument offered for probate; (d) that he did not acknowledge to the subscribing witnesses that his signature to the will was made by himself or by his authority; (e) that he did not declare to such witnesses that the instrument was his will; (f) that said witnesses did not sign their names to the instrument at the request of James M. Spencer; (g) that James M. Spencer was not on that day acting under duress, menace, fraud or undue influence of John C. Spencer. 'The court adopted these findings of the jury, and entered a decree setting aside the probate of the will, revoking the letters testamentary theretofore issued to John 0. Spencer, and ordered letters of administration to be issued upon said estate to Nanny 'Spencer.
1. The appellant contends that the court erred in holding the former proceedings void in toio, and maintains that the probate of the will and the final order of distribution may not, in any event, in this proceeding, be set aside, except in so far as the rights of the contesting heir are concerned. The probate •of wills and the settlement of estates are not governed by the [637]*637general law relating to actions, proceedings and judgments, but are, in the main, provided for by statute; and, in so far as the statute has spoken, its declarations are final. The doctrine of the indivisibility of judgments, discussed and considered in Wells v. Wells et al., 144 Mo. 198, 45 S. W. 1095, does not apply.
Section 2366 of the Code of Civil Procedure provides: “If no person, within one year after the probate of a will, contest, the same or the validity thereof, the probate of the will is conclusive; saving to infants and persons of unsound mind, a like-period of one year after their respective disabilities are removed.” The language of this statute is too plain to require-either interpretation or construction. If the heir voluntarily permitting the time allowed by law to contest a will to elapse without making any objection, can profit by a successful contest instituted by one -whose time has not elapsed, he accomplishes by indirection that which the law forbids him to do directly, and reopens a controversy which the statute says is concluded. As was said in Thompson v. Samson, 64 Cal. 330, 30 Pac. 980, in considering this identical question: “The result of sustaining this proposition is, of course, to hold that no purchaser at an executor’s sale, and no purchaser from any heir, legatee or devisee, made even after final distribrrtion, can ever be secure-in his purchase until the expiration of one year after every infant and person of unsound mind who may be interested in the-estate shall have been relieved of their respective disabilities.”
Our statute saves to persons not sni juris one year after the-removal of their disabilities within which to contest the probate-of a will. It also provides for the probate of a document purporting to be the will of a deceased person, for the hearing of the petition, the establishment of the will by proper proof, and the administration and final distribution to the persons entitled thereto. And such order and final distribution “is conclusive as to the rights of heirs, legatees or devisees, subject only to be-reversed, set aside or modified on appeal.” (Sections 2844, 3196, Code of Civil Procedure.) All these statutes must be construed together.
[638]*638Where there is a proper subject-matter, neither the order admitting a will to probate nor the order of final distribution is void, and neither can be contested or set aside except in the manner and within the time fixed by statute; nor can one against whom by'lapse of time these proceedings have become “conclusive” avail himself of proceedings instituted and carried to a successful conclusion by one against whom the limitation has not run.
Furthermore, an heir who has acquiesced in the settlement and final distribution of an estate in a certain manner is es-topped afterwards to call this settlement and distribution in ■question, and to compel the return of, or an accounting for, the property thus parted with by the executor or administrator in good faith, and with the acquiescence and sanction of the heir; and this principle would apply if there were no will at all. On the subject of estoppel, see Lilly v. Townsend, 110 Mich. 253, 68 N. W. 136.
Samson v. Samson, 64 Cal. 327, 30 Pac. 979, is based on a ■similar state of facts as that here presented, and involves the ■construction of Sections 1333 and 1666 of the California Oode •of Civil Procedure, which are substantially the same as Sections 2366 and 2844, respectively, of the Montana Code of Civil Procedure. The court in that case held that a decree annulling a will upon an application made, by a minor heir operates upon the interests of the applicant only. It does not act in favor of those heirs who have lost their right to contest the will by the lapse •of time. The decree of the district court in the Samson Gase was to the effect that the entire proceedings under the will were void. The supreme court ordered the case returned to the district court with instructions to modify the judgment in accordance with the views expressed in its opinion.
2. One of the grounds stated in the motion for a new trial was newly discovered evidence, and affidavits were filed in support of this contention.
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ME. COMMISSIONER POOEMAN
prepared the opinion for the court.
This is an appeal from a judgment and decree revoking the-probate of a will, and from an order overruling a motion for a new trial.
James M. Spencer died in Deer Lodge county, Montana, October 12, 1891, leaving surviving him his widow, Nanny Spencer, his only daughter, Jane Porter, and his two sons, John O. and James E. Spencer. Afterwards a paper bearing date-September 22, 1891, and'purporting to be the last will and testament of said James M. Spencer, was offered for probate; and on December 5, 1891, an order of court was made admitting the same to probate, and appointing John O. Spencer executor thereof. At the time of the death of James M. Spencer all the children were over the age of twenty-one years, except James E. Spencer, who was born November 8, 1878. Under the terms of this, alleged will, $5 were bequeathed to James E. Spencer, $5 to Jane Porter, and all the rest, residue and remainder of' the estate was bequeathed to the widow, Nanny Spencer, and the-[636]*636elder son, John C. Spencer, to be equally divided between them. The estate was administered in accordance with the terms of this alleged will, and the executor was finally discharged from his said trust in 1894.
The validity of the will was not questioned by any one until James R. Spencer, having attained his majority, and within ■one year thereafter, filed his petition contesting the will, and, as appears from the amended petition on which the case was tried, limiting the contest to two grounds: (1) Lack of mental capacity; and (2) fraud, menace and undue influence of John 0. Spencer. The answer put in issue the facts stated in the petition, and alleged the due execution of the will. The case was tried to a jury, which returned findings to the effect (a) that James M. Spencer on the 22d day of September, 1891, did not have sufficient mental capacity to make a testamentary disposition of his property; (b) that he did not have sufficient physical strength to execute a will; (c) that he did not subscribe his name at the end of the instrument offered for probate; (d) that he did not acknowledge to the subscribing witnesses that his signature to the will was made by himself or by his authority; (e) that he did not declare to such witnesses that the instrument was his will; (f) that said witnesses did not sign their names to the instrument at the request of James M. Spencer; (g) that James M. Spencer was not on that day acting under duress, menace, fraud or undue influence of John C. Spencer. 'The court adopted these findings of the jury, and entered a decree setting aside the probate of the will, revoking the letters testamentary theretofore issued to John 0. Spencer, and ordered letters of administration to be issued upon said estate to Nanny 'Spencer.
1. The appellant contends that the court erred in holding the former proceedings void in toio, and maintains that the probate of the will and the final order of distribution may not, in any event, in this proceeding, be set aside, except in so far as the rights of the contesting heir are concerned. The probate •of wills and the settlement of estates are not governed by the [637]*637general law relating to actions, proceedings and judgments, but are, in the main, provided for by statute; and, in so far as the statute has spoken, its declarations are final. The doctrine of the indivisibility of judgments, discussed and considered in Wells v. Wells et al., 144 Mo. 198, 45 S. W. 1095, does not apply.
Section 2366 of the Code of Civil Procedure provides: “If no person, within one year after the probate of a will, contest, the same or the validity thereof, the probate of the will is conclusive; saving to infants and persons of unsound mind, a like-period of one year after their respective disabilities are removed.” The language of this statute is too plain to require-either interpretation or construction. If the heir voluntarily permitting the time allowed by law to contest a will to elapse without making any objection, can profit by a successful contest instituted by one -whose time has not elapsed, he accomplishes by indirection that which the law forbids him to do directly, and reopens a controversy which the statute says is concluded. As was said in Thompson v. Samson, 64 Cal. 330, 30 Pac. 980, in considering this identical question: “The result of sustaining this proposition is, of course, to hold that no purchaser at an executor’s sale, and no purchaser from any heir, legatee or devisee, made even after final distribrrtion, can ever be secure-in his purchase until the expiration of one year after every infant and person of unsound mind who may be interested in the-estate shall have been relieved of their respective disabilities.”
Our statute saves to persons not sni juris one year after the-removal of their disabilities within which to contest the probate-of a will. It also provides for the probate of a document purporting to be the will of a deceased person, for the hearing of the petition, the establishment of the will by proper proof, and the administration and final distribution to the persons entitled thereto. And such order and final distribution “is conclusive as to the rights of heirs, legatees or devisees, subject only to be-reversed, set aside or modified on appeal.” (Sections 2844, 3196, Code of Civil Procedure.) All these statutes must be construed together.
[638]*638Where there is a proper subject-matter, neither the order admitting a will to probate nor the order of final distribution is void, and neither can be contested or set aside except in the manner and within the time fixed by statute; nor can one against whom by'lapse of time these proceedings have become “conclusive” avail himself of proceedings instituted and carried to a successful conclusion by one against whom the limitation has not run.
Furthermore, an heir who has acquiesced in the settlement and final distribution of an estate in a certain manner is es-topped afterwards to call this settlement and distribution in ■question, and to compel the return of, or an accounting for, the property thus parted with by the executor or administrator in good faith, and with the acquiescence and sanction of the heir; and this principle would apply if there were no will at all. On the subject of estoppel, see Lilly v. Townsend, 110 Mich. 253, 68 N. W. 136.
Samson v. Samson, 64 Cal. 327, 30 Pac. 979, is based on a ■similar state of facts as that here presented, and involves the ■construction of Sections 1333 and 1666 of the California Oode •of Civil Procedure, which are substantially the same as Sections 2366 and 2844, respectively, of the Montana Code of Civil Procedure. The court in that case held that a decree annulling a will upon an application made, by a minor heir operates upon the interests of the applicant only. It does not act in favor of those heirs who have lost their right to contest the will by the lapse •of time. The decree of the district court in the Samson Gase was to the effect that the entire proceedings under the will were void. The supreme court ordered the case returned to the district court with instructions to modify the judgment in accordance with the views expressed in its opinion.
2. One of the grounds stated in the motion for a new trial was newly discovered evidence, and affidavits were filed in support of this contention. All of the evidence contained in the affidavits relates to the mental and physical condition and so’.briety of the testator, and was all cumulative evidence, except, [639]*639possibly, the affidavit of Dr. "Whitford, which related to the effect of a gunshot wound received by the testator several years prior to his death. The record, however, contains no affidavit by appellant that he did not know of this so-called newly-diseovered evidence at the time of the trial, and the district court did not err in refusing' to grant a new trial on this ground. (Nicholson v. Metcalf, 31 Mont. 276, 78 Pac. 483, and cases cited; Smith v. Shook, 30 Mont. 30, 75 Pac. 513.)
3. Objections are made to certain instructions 'given, and to the action of the court in refusing to give other instructions requested by appellant. None of the instructions given or requested appear in the judgment roll. It is the settled practice in this state that instructions given and those requested and refused are a part of the judgment roll, and, unless they come up as such, they will not be considered. (Session Laws 1901, p. 160; see cases cited in Shropshire v. Sidebottom, 30 Mont.406, 76 Pac. 941.)
4. It appears that some of the special findings were acquiesced in by only nine of the jurors. Two of the dissenting jurors filed affidavits to the effect that some of the other jurors assented to the findings on the ground that the residence address ©f one of the subscribing witnesses to the will was not in the same handwriting as the signature of such witness, and was in the same handwriting as the body of the will. The will had been put in evidence, and was taken by the jury to its room. In this state two-thirds of a jury in a civil action may agree upon a verdict. (Section 1084, Code of Civil Procedure.) This statute is based upon constitutional authority. (Section 23, Article III, Constitution of Montana.) But if a verdict so rendered by the specified majority may be set aside by reason ©f affidavits made by dissenting jurors to the effect that, in the ©pinion of such dissecting jurors, the conclusion of the majority was reached by giving a wrong construction to or attaching undue weight to the evidence, or some part of it, then this statute is of little avail, for, if a difference of opinion as to the weight or construction of evidence did not exist, there could [640]*640never be a divided jury. It has long been the settled rule that, in the absence of a statute, and in order to secure freedom of-thought, thorough discussion and independence of action, as well as to prevent undue influence and fraud, the construction or weight given to evidence submitted is not a subject of inquiry upon a motion for a new trial. Subdivision 2 of Section 1171 of the Code of Civil Procedure does not change this rule. (Fredericks v. Judah, 73 Cal. 604, 15 Pac. 305; Saltzman v. Telephone Co., 125 Cal. 501, 58 Pac. 169; Griffiths v. Montandon, 4 Idaho, 377, 39 Pac. 549.)
5. There is a very substantial conflict in the evidence, and the contention of the appellant as to insufficiency of the evidence to sustain the findings is without merit. (Babcock v. Maxwell, 29 Mont. 31, 74 Pac. 64.)
The contention that the court submitted to the jury findings respecting issues not raised by the pleadings is made by objecting to instructions which are not before the court. The real question in controversy was the testamentary capacity of decedent at the date of the instrument purporting to be his last will, and, when the jury found that he was mentally incompetent to make a will, the other findings are immaterial, so far as the ultimate rights of the parties in this proceeding are concerned.
6. It is alleged that the court erred in admitting certain testimony. The witness testified, over objection, as to the condition of the decedent before and after the date of the document alleged to be his will, detailing circumstances relative to his mental and physical condition for six months prior to the date of the instrument. The witness further gave it as his conclusion that the decedent was not mentally competent to make a will. It is a well-settled rule that “one not an expert may give an opinion, founded upon observation, that a certain person is sane or insane.” The witness in this case detailed the circumstances upon which he based his conclusion, and all his statements went to the jury. There was nó error in admitting this testimony. (Lawson, Opinion Evidence, 2d Ed., p. 532.) The witness Fanny Spencer, mother and guardian of the plaintiff, testified [641]*641on cross-examination that, some years prior to the institution of these proceedings, similar proceedings had been instituted by her as guardian, and that the same had been dropped. The witness was then asked by appellant to state by whom the proceedings had been dropped. Objection was sustained to the question on the ground that the court records were the best evidence. No attempt appears to. have been made in this case to introduce any evidence or raise any question as to another action pending or as to any former adjudication, and, if such attempt had been made, it is quite apparent that the court records in such other proceeding or former adjudication would be the best evidence. It is apparent the appellant was not injured by this ruling of the court.
We recommend that the cause be remanded, with directions that the judgment be modified in accordance with the views herein expressed, and that, upon the entry of the judgment as modified, the judgment and order appealed from be affirmed.
Per Curiam. — Por the reasons stated in the foregoing opinion, the cause is remanded to the district court, with directions to modify the judgment entered, by holding the probate of the will set aside only in so far as the interests of the contestant James R. Spencer are concerned; that the interest of said contestant under the law of succession be adjudged; and, as so modified, the judgment and order are affirmed. It is further ordered that each of the parties to this appeal pay his own costs.
Modified and affirmed.
Mr. Chief Justice Brantey, being disqualified, takes no part in this decision.