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interest of his legatees and devisees becomes Reid, containing probably 300 acres. In a vested property right.

Page, Wills, § 22.

The right to offer a will for probate is limited by the ten years' statute as the period of limitation for an action for relief not otherwise limited.

April, 1890, J. W. Reid, Sr., borrowed of appellee, E. J. Benge, $600, and to secure its repayment executed a mortgage on the tract of land that had formerly been owned by T. T. Reid, and which J. W. Reid, Sr., then thought he had inherited from his son

Allen v. Froman, 96 Ky. 313, 28 S. W. T. T. Reid. This mortgage was properly 497.

Mr. D. K. Rawlings for appellee.

White, J., delivered the opinion of the court:

In October, 1888, T. T. Reid died in Clay county, never having married or had issue. His only heir at law was J. W. Reid, Sr., his father, the mother having died prior to the death of T. T. Reid. After the death of T. T. Reid, his father, as heir at law, took possession of the real estate left by T. T. should be admitted to probate although many years have elapsed since the death of the testator. In the absence of a statutory limitation, or any question of the rights of a purchaser for value, or estoppel, it seems that there is no welldefined limitation as to the time of probate. The English rule is stated to be that if a will is probated in common form-that is, in an ex parte proceeding-it may thereafter be probated in solemn form, that is, on notice to those interested at any time within thirty years. There are a few cases in which it was held that wills may be probated after the lapse of the statutory period, as in cases of concealment, etc. There are cases, also, where the probate was refused without regard to the period of time only,--under circumstances of estoppel and the like.

In the following cases wills were probated where many years had elapsed after the death of the testator: Re Myers, 3 Dem. 193; Tallaferro v. Taliaferro, 4 Call (Va.) 93; sixtythree years, Haddock v. Boston & M. R. Co. 146 Mass. 155, 15 N. E. 495; forty-two years, Davis v. Gaines, 104 U. S. 386, 26 L. ed. 757; thirty-one years, Deake's Appeal, 80 Me. 57, 12 Atl. 790; twenty-nine years, Fox v. Fee, 167 N. Y. 44, 60 N. E. 281; twenty-three years, Fatheree V. Lawrence, 33 Miss. 585; over twenty years, Bourne v. Greenleaf, cited in 146 Mass. 157, 15 N. E. 495; nineteen years, Cole v. Gourlay, 79 N. Y. 527; eighteen years, Carpenter v. Denoon, 29 Ohio St. 379 (from probate in other state); fourteen years, Waters v. Stickney, 12 Allen, 1, 90 Am. Dec. 122 (codicil); thirteen years, Walton v. Ambler, 29 Neb. 626, 45 N. W. 931; twelve years, Schultz v. Schultz, 10 Gratt. 358, 60 Am. Dec. 335 (dictum, seventeen years) eleven years, Ryan v. Texas & P. R. Co. 64 Tex. 239; Transue v. Brown, 31 Pa. 92; ten years, Camden Safe Deposit & T. Co. v. Ingham, 40 N. J. Eq. 3; Etheridge v. Corprew, 48 N. C. (3 Jones, L.) 14 (solemn form); REID V. BENGE (statutory limit); Allen v. Froman, 96 Ky. 313, 28 S. W. 497 (statutory limit); nine years, Gray v. Maer, 20 N. C. (3 Dev. & Batt. L.) 47 (reprobate); Allen v. Allen, 28 Kan. 18 (nine years on file; statutory limit three years); six years, Doe er dem. Pope v. Pickett, 51 Ala. 584; five years, Besancon v. Brownson, 39 Mich. 388; four years, nine months, Elwell v. Universalist General Convention, 76 Tex. 514, 13 S. W. 552; four years limit by statute, Fox v. Fee, 167 N. Y. 44, 60 N. E. 281: one year, Keith v. Proctor, 114 Ala. 676, 21 So. 502.

And it has been said that a will may be probated at any time. Shumway v. Holbrook, 1 Pick. 115. 11 Am. Dec. 153; Clagett v. Haw

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executed, delivered, and put to record in the proper office. After the execution and delivery of this mortgage to appellee, the mortgagor, J. W. Reid, Sr., died, and administration was had on his estate by J. W. Reid, Jr. The appellee instituted this action to collect her debt of $600 from the estate of J. W. Reid, Sr., and to enforce her mertgage lien on the tract of land. The administrator and heirs at law of J. W. Reid, Sr., were all made parties. To this action certain of the children of J. W. Reid, Sr., kins, 11 Md. 381; Rebhan v. Mueller, 114 Ill. 343, 55 Am. Rep. 869.

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And that a will that was forty-three years old could be probated. Marcy v. Marcy, 6 Met. 360.

Or one that was over four years old. Ochoa v. Miller, 59 Tex. 462.

And it was said that in England a will could be probated in solemn form within thirty years. Straub's Case, 49 N. J. Eq. 264, 24 Atl. 569.

And it was said in Stebbins v. Lathrop, 4 Pick. 33, and Foote v. Foote, 61 Mich. 181, 28 N. W. 90, that the statute directs a will to be probated in thirty days.

And a statute requires a holographic will to be probated in six months. George v. Greer, 53 Miss. 495.

But a codicil over twenty years old was refused probate, in Watson v. Turner, 89 Ala. 225, 8 So. 20 (applying the statutory time for contesting wills).

And a will nineteen years old was held inadmissible to probate on the ground of estoppel in Re Lyman, 14 Misc. 357, 36 N. Y. Supp. 117.

So, where a will was fourteen years old. Foote v. Foote, 61 Mich. 181, 28 N. W. 90.

And a second will was denied probate after five years, in Hardy v. Hardy, 26 Ala. 524 (applying a statute).

A will was found among papers in the pos session of one of the heirs and offered for probate sixty-three years after the death of the testator. It was held that it should be probated. Haddock v. Boston & M. R. Co. 146 Mass. 155, 15 N. E. 495. In this case the court said: "So long as one can produce the evidence necessary to obtain the probate of a will, we can see no legal reason why one who relies upon it should not be allowed to prove it as he would be permitted to prove a deed, however ancient, under which he claimed title. The fact that he could not offer in evidence a will not admitted to probate, as he might an ancient deed, would certainly afford no reason why its authenticity should not be established in the probate court by its regular course of procedure." In this case the question was only on the probate, and the objector claimed that the title to his real estate might be affected, but the case does not show how.

And in Re Myers, 3 Dem. 193, it was held that a will should be admitted to probate where it was offered more than thirty years after its execution, and proved by one attesting witness, the other being dead. The case does not show when the testatrix died.

In Bourne v. Greenleaf, cited in 1 Pick. 117, note, Mr. Justice Jackson, at the argument,

brothers and sisters of T. T. Reid, deceased, |istence and probate of the will was formally filed answer, being already parties hereto, denied. The only proof taken was that of and denied that at the date of the execution appellee, who, if competent for any purof the mortgage by J. W. Reid, Sr., to ap- pose, established the justness of her claim pellee, or at all, the said J. W. Reid, Sr., had against J. W. Reid, Sr., which was never an title to the land, or that the same ever de- issue, and her entire ignorance of the will scended to him from his son T. T. Reid, of T. T. Reid until it was probated in 1895, their brother. They pleaded that at the more than five years after she had loaned regular term of the Clay county court in the money to J. W. Reid, Sr., and accepted May, 1895, there was produced and probated the mortgage as security. With this proof the will of T. T. Reid, by which will the land and the copy of the probated will and orders mortgaged was devised to them in conjunc- of the county court the case was submitted tion with their father, J. W. Reid, Sr.; that for final hearing. The court adjudged to is to say, the father was devised one fourth appellee a lien on the whole of the land to the land, and the other three fourths to ap satisfy her debt, and decreed a sale thereof, pellants, his brothers and sisters. Appel- and to reverse that judgment this appeal is lants therefore denied appellee's right to a prosecuted. lien upon the land, at least to the extent of It may be said at the outset that there their interest.-three fourths,-derived un- is no pretense or plea that the devisees (apder the will of T. T. Reid. By reply the ex-pellants) were guilty of any fraud by supsaid there was a case in the county of Essex, perhaps thirty years ago, where it was found that the widow of a testator must hold land under the will, which had not been proved. The will was therefore carried to the probate office, but, more than twenty years having elapsed since the death of the testator, the judge of probate refused to allow it; but upon an appeal the decision was reversed, as a will must be proved and allowed, in order to conrey land. The names of the parties in this case are given in Haddock v. Boston & M. R. Co. 146 Mass. 155, 15 N. E. 495, where it was said: "It is a case to which some weight must be attached, as it brought into question directly the authority of the court of probate, and the appeal was to the full bench of the supreme court, which reversed the original decree. II. Where the estate is sold or mortgaged by While no opinion appears to have been written, It could not but have been a carefully consid ered case, as it reversed the opinion of the judge of probate as to the extent of his jurisdiction."

And where a will was offered for probate eleven years after the death of the alleged testator and after the death of both of the subscribing witnesses, and on an issue of devisavit vel non there was evidence of the handwriting of the subscribing witnesses and of the alleged testator, it was held that it was sufficient to admit the will to be read in evidence to the jury. Transue v. Brown, 31 Pa. 92. In this case the court does not discuss the question of limitation or delay, but says that "if rights have vested under the proceedings of the administrator, In selling or distributing the estate, this is not the proper time to protect them."

In Marcy v. Marcy, 6 Met. 360, 370, the question was whether there was sufficient evidence that a will which became operative forty-three years before had been admitted to probate so that It could be read in evidence. The court held that there was such evidence, adding: "On evidence ilke the present, it would be the duty of the probate court to establish the will, if, for want of form, the probate should have been considered so defective that the will had been rejected as evidence in its present state."

In Shumway v. Holbrook, 1 Pick. 115, 11 Am. Dec. 153, it was said: "If a will can be found, it may be proved in the probate office at any time, in order to establish a title to real estate. It differs from an administration of personal property, which cannot be originally granted upon the estate of any person after twenty years from his decease."

In Clagett v. Hawkins, 11 Md. 381, which was an application to revoke a will, it was

said: "The proposition, that no lapse of time will exclude the inquiry whether certain papers constitute the will of a party, is supported by almost any number of authorities; that of Finucane v. Gayfere, 3 Phillim. Eccl. Rep 405, will suffice for this case."

In Ochoa v. Miller, 59 Tex. 462, it was said that if it is shown that a will has not been under the control of the party offering the same for probate, nor in its proper place of deposit, it may be probated after the lapse of four years if proper steps are taken and proper proof made. It was further said that no "letters testamentary could, however, issue." The statute requires that a will should be probated in four years.

the heirs.

Under statutes protecting the rights of purchasers for value as against a subsequent probate of a will, such purchasers are protected if the will is not probated within the statutory time. It is held that a purchaser from a devisee may have the will probated after the statutory time where cause is shown for delay and his title is contested by the heirs; and a purchaser at a judicial sale under an order of the probate court, acquiring title through a will, was held not to be affected by the probate of a subsequent will, of which he had no notice. A party advancing money on a mortgage made by heirs is not protected until after the statutory time for probating the will has elapsed. There are quite a number of cases in which probate was allowed in order to make a link in a chain of title, where the probate did not occur for many years; but in most of these cases the question seems only to have been as to the right to have the will probated, whatever question might occur as to the rights of a purchaser being relegated, without notice, to а subsequent action.

In REID V. BENGE It was held that in Kentucky a will may be probated at any time within ten years after the death of the testator. In this case the will was probated seven years after the testator's death. The heir had taken possession of the land, and had executed a mortgage thereon, but the devisees were ignorant of the execution of the will. It was held that they were not precluded by lapse of time from asserting their rights.

Where the testatrix died in 1871 it was held that, notwithstanding the expiration of four years from her death, her will might be probated in 1882 to establish a link in a chain of title, although no letters testamentary could is

or in inducing the appellee to part with her money on the faith of the mortgage secu rity by any of the appellants, at least with any knowledge or information of their rights in the land. As we understand the conten tion of counsel, his position is that by rea son of the negligence of testator in so plac ing his will as not to be found for seven years after his death, though this may not have been actually intended, and by reason of laches of appellants, devisees thereunder, in not producing the will, the appellee has acquired an equitable claim superior to the legal title under the will. By § 16, chap. 113, Gen. Stat., in force at the death of T. T. Reid, it is provided that the will speaks as of the testator's death, unless a contrary intent appear by the will. Alexander proved and recorded within three years after the death of the testator, excepting in case of infancy, incompetency, or absence from the state, or concealment of the will. It was held that the question could not be settled by the demurrer where the complaint did not show that the plaintiffs were not within the exceptions. Biggs v. McCarthy, 86 Ind. 352 (44 Am. Rep. 320, omits this).

pressing the will, or in fact knew that such | years after testator's death. There is no paper existed till long after the execution plea of fraud either in suppressing the will of appellee's mortgage. It seems to be conceded that all parties acted in good faith upon the facts as they knew them. The question, then, presented for our consideration, is: Is the equity of appellee, acquired under the mortgage executed by J. W. Reid, Sr., when all parties believed he was the legal owner by reason of being heir at law, and five years before the discovery of the will of T. T. Reid, superior to the legal title of the devisees under the will? It is conceded that no statute of limitation applies to bar appellants' right to recover, for it is well settled in this state that a will may be probated at any time within ten years after the death of the testator. Allen v. Froman, 96 Ky. 313, 28 S. W. 497. The will in the case at bar was probated seven sue, where the will had not been in plaintiff's control, but had all the while been in the place of its appropriate custody, or under the control of the husband of the testatrix. Ryan v. Texas & P. R. Co. 64 Tex. 239. In this case the will was made so as to be available as a deed or will, and it had been recorded as a deed, but litigation arose over it and application for probate was made, but was dismissed under a compromise. The litigation was held sufficient excuse for the laches in plaintiff. Tex. Rev. Stat. art. 1828, provides that no will shall be admitted to probate after the lapse of four years from the death of the testator, unless the party applying for probate was not in default; and in no case shall letters testamentary be issued where the will is probated after four years from the death of the testator. The pro pounders of the will were purchasers from the devisee and desired to use the will in their chain of title in the contest with the heirs.

In the absence of statutory regulation, it was held that a will might be probated any time after the testator's death. Rebham v. Mueller, 114 Ill. 343, 55 Am. Rep. 869, 2 N. E. 75. In this case the testator died in 1870, and in 1883 the will was admitted to probate. Ill. Rev. Stat. 1874, chap. 148, § 12, requires any person who may have in his possession the last will of another, immediately upon the death of the testator, to deliver such will to the county court of the county, and imposes a fine for withholding a will, and punishment for wilfully secreting one. It was held that the failure of the custodian to comply with this statute could not affect the rights of any person claiming under the will, or the jurisdiction of the probate court to probate the will within a reasonable time. It was also held that this statute did not fix a definite time within which a will shall be presented to court and admitted to probate, and that there was no statute which may be regarded as a limitation law barring the probate of a will after a specified time. The court said: "If a will is not produced, and letters of administration issue, acts done and rights accrued under such administration will be entitled to protection, so that no serious consequences can follow from the delay in probating a will."

A purchaser from heirs, when sued by the devisees to establish plaintiffs' title and recover their estates, demurred to the complaint on the ground that he was an innocent purchaser, under 2 Ind. Rev. Stat. 1879, p. 574, act May 31, 1852. § 17, providing that the title of any land purchased in good faith for a valuable consideration from heirs shall not be impaired by any devise, unless the will shall have been

But purchasers for value and mortgagees were held entitled to successfully resist the probate of a will that was fifteen years old, where all the devisees had attained their majority more than three years prior to the probate of the will. The property was left to the devisees and the heirs of their body, and the will was offered for probate by grandchildren who were born ten years after the testator's death. It was held that purchasers were protected, under Conn. Stat. 209, t. 32, chap. 1, § 39, providing that a will shall not be probated more than ten years after the death of the testator, saving to infants three years after attaining their majority. Goodman v. Russ, 14 Conn. 210.

In Davis v. Gaines, 104 U. S. 386, 26 L. ed. 757, it was held that a sale of lands duly made by order of the probate court having jurisdiction, and the conveyance thereof by the execu tor of a will, duly admitted to probate while its functions were in full force, to a bona fide purchaser for value, vested the purchaser with a good and valid title which was not affected by the discovery of a later will, and its admission to probate and record. In this case the testator died in August, 1813, and the sale by the register of wills was made November 8, 1813, under a will dated May 20, 1811. other will was executed July 13, 1813, and an action was brought in 1836 to establish the same as a lost will. It was probated January 18, 1855, and was recognized by the supreme court of Louisiana as the last will on December 17, 1855. La. act March 10, 1834, § 4, provided that all informalities of any public sale made by public officers shall, after five years from the sale, be prescribed against by those claiming under such sales, whether they be minors, married women, or parties

dicted.

The

inter

Under N. Y. Rev. Stat. 749, § 3, providing that the title of a bona fide purchaser for a valuable consideration from the heirs shall not be impaired by a devise, unless the will shall have been duly proved or recorded within four years after the death of the testator, except where the will has been concealed by the heirs or some one of them, and except the devisee is a minor, it was held that the title of a bona

v. Waller, 6 Bush, 330. It was held as far | part or the part of those under whom he back as 1827 in the case of Re Payne's Will, claims, or by an adjudication upon his 4 T. B. Mon. 423, that the interest of a dev- rights which he cannot be allowed to call isee vested the instant of testator's death, in question." Stephens defines "estoppel:" and was not lost by destruction of the will "A preclusion in law which prevents a man before probate. This case has never been from alleging or denying a fact in consequestioned in this state, so far as we are quence of his own previous act, allegation, informed. Applying that rule here, it is or denial of a contrary tenor." Blackstone's clear that at the death of T. T. Reid, in definition is: "A special plea in bar, which 1888, the appellants, devisees under his will, happens where a man has done some act or had a vested estate in his lands, as the will executed some deed which precludes him provided. To devest them of this title there from averring anything to the contrary." must be either conveyance, prescription, or It is the foundation of the doctrine of esestoppel in some form. It is not pretended toppel that the party estopped has designthat there is a conveyance, or that their edly so acted or spoken as to induce others right to claim under the will is barred by to change their position injuriously to themany statute of limitation. An estoppel is selves; in other words, the doctrine of defined by Bouvier to be "the preclusion of estoppel is founded on the fraud of the a person from asserting a fact by previous party who is held estopped. But, to be conduct inconsistent therewith on his own guilty of fraud, a person must knowingly fide purchaser for value, in a proceeding to | In this case probate had been refused on the sell land of an infant heir, was not affected by ground that the testatrix was incompetent. the probate of a will more than four years East Riding registry act, 6 Anne, chap. 35, from the death of the testator, although one provides that a memorial of deeds, conveyof the heirs took the will from his mother's ances, and wills may be registered, and every possession and kept it concealed for fifteen deed or conveyance shall be fraudulent and years. In this case the minor heir became of void against any subsequent purchaser or mortage more than five years prior to the probate, gagee for a valuable consideration unless such and it was held that the other exception in the memorial is registered; and that memorials of statute did not apply. Cole v. Gourlay, 79 N. wills shall be registered within the space of six Y. 527. The testator died in 1836, and the months after the death of the devisor or testawill was probated in 1855. trix dying within Great Britain or within three vears if the death occur beyond the seas. It was held that the title of a mortgagee for value was not affected by a will which was not discovered by the devisee until the expiration of six months after the death of the testator. Chadwick v. Turner, L. R. 1 Ch. App. 310, 35 L. J. Ch. N. S. 349, 12 Jur. N. S. 239, 14 L. T. N. S. 86, 14 Week. Rep. 491.

And purchasers for value from the heirs at law and widow were held not to be affected by the probate of a will where the will was not probated for more than twenty-eight years. It was held that the saving clause in favor of minors did not apply to a child unborn at the time of the death of the testator, under N. Y. Code Civ. Proc. 2628 (2 Rev. Stat. 59, § 18), providing that purchasers in good faith for a valuable consideration from the heirs of the owner shall not be affected by the will of the latter unless, four years after his death, the will is established; but if at the time of his death the devisee is within twenty-one years of age the limitation does not begin until after one year from the removal of the disability. The court said: "Certainly the exception is not intended to cover unborn children, especially before gestation." Fox v. Fee, 167 N. Y. 44, 60 N. E. 281.

In Gilkinson v. Miller, 74 Fed. 131, which was an action of ejectment, it was held that the purchaser was not a bona fide purchaser, under N. Y. Code Civ. Proc. § 2628, providing as above. In this case the testatrix died in 1876 leaving the property to plaintiff, an infant, and the will was offered for probate and a contest made by the heir at law, and probate was refused in 1878. The heir at law took possession and sold the same, in 1874, to the defendant, and paid to the infant devisee, on her becoming of age, $1,000 for a release of all elaims, which release was executed without knowledge that the decree of the surrogate court would affect her title. The purchaser had the title examined, and had notice of the probate proceedings. The court said: "The section of the Code in question cannot be construed to protect one who had actual notice of a will conveying the property away from the heir at law." The infant became of age in 1882, and the action to recover the land was brought thirteen years thereafter. The provison of the Code gives the devisee one year after becoming of age to probate the will, but this provision is not construed in the decision.

III. Where the devisees are under disabilities.

In some cases the disability of a devisee, as minority, and the like, is held to excuse delay in offering a will for probate. Where a statute provides a saving clause for minors they must bring themselves strictly within its provisions. A statutory exemption in favor of minors is held not to apply to infants not begotten at the time of the testator's death.

The probate of a will was suspended at the instance of the heir at law, and remained for many years unnoticed during the infancy of the legatees, but was afterwards proved. It was held that the legatees, notwithstanding some delay after majority, would be entitled to assert their rights, of which they were ignorant until the final probate of the will, against Taliaferro V. Taliaferro, 4 Call volunteers. (Va.) 93.

And where some of the heirs were under dis

abilities it was held that a second probate was properly ordered, on notice to all parties interested, nine years after a will had been probated. Gray v. Maer, 20 N. C. (3 Dev. & B L.) 47.

In Gaines v. New Orleans, 6 Wall. 642, 18 L. ed. 950, where an infant attaining majority in 1826 brought suit in 1834 to establish a second lost will, the first having been probated in 1813, it was held that her rights were not affected by twenty years' prescription, although the second will was not admitted to probate until 1855.

In Etheridge v. Corprew, 48 N. C. (3 Jones, L.) 14, where a will had been probated in common form, and the heirs were under disabilities of coverture, absence beyond the seas, non

do or say that which is inconsistent with honesty and truth, or, regardless of what the truth may be, induce a person to act. There can be no case found where any person was ever charged with fraud or held to be estopped where he was ignorant of the truth and did no act at all. In the case at bar the devisees under the will of T. T. Reid did nothing, said nothing, and at that time were in entire ignorance of the existence of a will, or that they had any rights in the property. In fact, if there was no will, which they then believed to be the truth, they knew that they had no right, title, or interest in the land. They knew that without a will the land descended to their father, J. W. Reid, Sr. There can be no act of appellants that could by any rule of law be held to estop them from claiming under the will of T. T. Reid. It may be said that a person may speak a falsehood or act a falsehood, but, if he does no act, and reresidence, and lunacy, it was held that the lapse of ten years, in the absence of notice of the testator's death, would not bar an application by them for probate in solemn form. This in effect would be granting an opportunity to contest the will, as they claimed that the testator was incapacitated to make a valid will.

But an infant was held barred from asserting his rights under a will against a bona fide purchaser, where such infant had attained his majority more than five years prior to the probate, and N. Y. Rev. Stat. 749, § 3, protected a bona fide purchaser if the will was not proved in five years, except as against a minor. Cole v. Gourlay, 79 N. Y. 527.

And a clause saving the rights of minors, in N. Y. Code Civ. Proc. § 2628 (2 Rev. Stat. 59, § 18), providing four years for probating a will and protecting the rights of bona fide purchasers, was held not to include heirs not begotten at the time of the testator's death. Fox v. Fee, 167 N. Y. 44, 60 N. E. 281.

See Gilkinson v. Miller, 74 Fed. 131, subd. 11, for the same statute, where the devisee was not barred from her rights thirteen years after reaching majority.

The testatrix died in 1826. Her will gave the real estate to her four children to be equally divided between them and "to the heirs of their bodies forever." The devisees, being without issue, agreed on a division of the property, and not to probate the will. In 1836 a devisee had issue of his body born, and died in 1839. The will was offered for probate by the guardlan of the children of this devisee in 1841, which was more than thirteen years after the death of the testator, and more than three years after all the devisees had attained their majority. It was held that the will could not be probated, under Conn. Stat. 209, t. 32, chap. 1, § 39, providing that no will shall be allowed to be probated by any court of probate after the expiration of ten years from the death of the testator, provided that where any minor is interested in the estate three years shall be allowed after his arrival at full age to prove the will. Goodman v. Russ, 14 Conn. 210.

IV. Where the will is concealed, lost, or destroyed.

Knowledge, by some of the devisees, of the existence of a will, where the will has been concealed, will not stop the running of a statute providing that the time a will has been concealed oy the heirs is not to be taken into con

He was

mains silent, he cannot be charged with fraud or be estopped without he knew the truth when his nonaction or being silent is said to have induced another to act to his own injury. Likewise there can be no estoppel of appellants by reason of the act of the testator in not disclosing to some person the place where his will could be found. not called upon to publish the fact that he had made a will for the protection of appellee, for it was some two years after T. T. Reid's death that appellee had any claim of lien upon the land. Surely, a dead person cannot be charged with negligence, or be estopped, or create matters of estoppel by a failure to act after his death; yet this would be the effect of holding that appellants are chargeable with the fact that the will was not found before appellee's mortgage was executed by reason of some act or omission of T. T. Reid. There seems to be a dearth of authority on the exact quessideration. The concealment must be one that leaves the devisees ignorant of their rights, and keeps the will from their knowledge. There must be some affirmative action in order to constitute concealment with the purpose to pre vent its discovery. In actions for equitable relief to establish lost wills, twenty and thirty years have been held to be a bar, and, on the other hand, twenty years were held not to ap ply where a will was fraudulently concealed. and a ten-years statute barring a bill for relief was held not to bar an action to establish a lost will twenty years old.

A testator died in 1867, and the will, which had been found among worthless papers after the death of plaintiff's father, was probated in 1896. In 1869 it had been used in an action contesting a second will, and its existence was known to the testator's widow, the plaintiff's father, and all the other heirs. It was held that the title of a purchaser for a valuable consideration from the heirs and widow was not affected by its probate twenty-nine years after the testator's death, and that the concealment clause did not apply, under N. Y. Code Civ. Proc. § 2628 (2 Rev. Stat. 59, § 18), providing that purchasers in good faith for a valuable consideration from the heirs of the owner shall not be affected by a will of the latter unless within four years after his death the will is probated; but if the will is concealed by one or some of the heirs of the testator the limitation does not begin until one year from the delivery of the will to the devisee. representative, or surrogate. Fox v. Fee, 167 N. Y. 44, 60 N. E. 281.

In Cole v. Gourlay, 79 N. Y. 527, under a similar statute (N. Y. Rev. Stat. 749, § 3), It was held that the concealment clause in the statute did not affect the title of a bona fide purchaser where one of the heirs took the will and kept it concealed for fifteen years, and the claimant heir became of age more than five years prior to the probate. In this case the court said: "Certainly the statute cannot relate to a case where the devisees, or some of them, have knowledge or possession of the will, and it is taken from the possession of one by another clandestinely and secreted for a great length of time, or perhaps destroyed. The will was delivered to the widow, who was executrix and one of the devisees having a life estate, and remained in her possession for a number of years. It is fairly to be inferred that she had knowledge of the character of the instrument, and there can be no question that th

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