-The will of Joseph McReynolds, who died in September, 1864, was probated in the Probate Court of Talladega county on January 6, 1865. An instrument, purporting to be a codicil of the same will, was recently presented to the same court to be proved; and this paper was also probated in due form on December 6th, 1886,- — • more than twenty years, it will be observed, after the probate of the will itself. Some of the interested parties contested the proceeding, but the appellant was not one of these contestants.
The present bill is filed by the appellant, for the purpose of contesting the validity of this codicil, which, in some of its provisions, makes dispositions of the testator’s property essentially different from those made in the will as originally admitted to probate. The jurisdiction invoked is claimed under the following statute: “Any person interested in any will, who has not contested the same under the provisions of this article (Code, 1886, § 1989 ei seq.), may, at any time within five years after the admission of such will to probate in this State, contest the validity of the same by bill in chancery, in the district in which such will was probated, or in the district in which a material defendant resides.”- — Code, 1886, § 2000.
It is further declared (§ 2002), that “after the expiration of such five years, the validity of the will can only be contested by infants and persons of unsound mind, who are allowed five years from the termination of their respective disabilities; but in no case to exceed twenty years from the probate.”
This statute has existed in this State since the year 18Q6, *225having undergone a change in phraseology, but not in meaning, in passing through our various Codes enacted since that time. — Aiken’s Dig. 450. Its effect was to confer on courts of equity a jurisdiction which they never before possessed — the power to set aside a probated will, for fraud, forgery, or other ground affecting the validity of the paper. Another purpose was to shorten the time within which a judgment establishing a will could be disturbed, or the validity of the will as such assailed; or, as said in Johnston v. Glasscock, 2 Ala. 218, 235, where the statute of 1806 was construed, “to provide a period of limitation much shorter than before was known, after which the will admitted to probate ceases to be the subject of controversy, and becomes entirely conclusive on parties interested.”
Prior to this statute, there can be no doubt of the fact, that the inherent jurisdiction of Probate Courts in this country, as of Ecclesiastical courts formerly in England, embraced the power to set aside the probate of a will at any time upon the discovery of a posterior will of the testator, and upon proper proof of its execution by the testator. Gaines v. Hennen, 24 How. U. S. 553. The rule is commonly asserted to be, that the probate of a will, either in common or solemn form, may be revoked on evidence of fraud in the proof, or of a later will. — 1 Williams on Executors, 399, 508. Codicils which may have been overlooked, are placed upon the same footing as later wills. A leading case on this subject is Waters v. Stickney (12 Allen, 1; 90 Amer. Dec. 122), where many authorities, American and English, are ably reviewed by Mr. Justice Gray. After announcing the general rule, that the decrees of Probate Courts as to matters of probate, and within the authority conferred on them by law, are conclusive in courts of common law, and* can not be set aside by courts of equity, he asserts that such decrees may be revoked for fraud, mistake, or other good cause, by the court which granted them. ' “In the face of the authorities,” he says, “it is impossible to deny the power of a court of probate to approve a subsequent will or codicil after admitting to probate an earlier will, by a decree the time of appealing from which is past; or to correct errors arising out of fraud or mistake in its own decrees.” The decree of the Probato Court, which had admitted the codicil of a will probated fourteen years after a former decree probating the will itself, was affirmed as free from error. Oases are reported where later wills and codicils have been admit*226ted to probate more than twenty, and even as late as thirty years, after the death of the testator.—Shumway v. Holbrook, 11 Amer. Dec. 153, Rebhan v. Mueller, 55 Amer. Rep. 869; Haddock v. Boston & Maine R. R., 4 Amer. St. Rep. 295; note, 299.
This statute was construed in Hardy v. Hardy, 26 Ala. 524. The decision reached in that case, and the reasoning of the court, establish the following propositions: (1) that the jurisdiction conferred by the act of 1806 (Clay’s Dig. 598, § 15) on courts of chancery to entertain bills of this nature, contesting the validity of wills already proved in courts of probate, was exclusive; (2) that a court of probate, therefore, no longer possessed its ancient jurisdiction to set aside the probate of a former will and permit the probate of a later one; (3) that the lapse of five years is a bar to any contest in either forum.
The reasoning of the court was, that the proof of a later will, inconsistent with a former one already proved, impeached the validity of the latter; and “if admitted to probate, the consequence would be, that there would be two wills established, inconsistent in their provisions.” “It was to avoid such consequences,” said Goldthwaite, J., “ that the statute to which we have referred was enacted. The paper offered for probate impeaches in part the will already admitted to probate-, and this, as we have seen, can only be done in the mode, and within the time prescribed by the act.”
To establish a later will is necessarily to disestablish a former one already proved. The same is obviously true of a codicil, any of the provisions of which are inconsistent with those of the will itself. To prove a codicil is, pro tanto, to disprove so much of the probated will as it may revoke or modify. The distinction is one of extent, not of kind or quality. The attempt to set aside a probated will, therefore, by proving a later one, or by attaching to it a codicil, with inconsistent provisions, is a contest of the validity of the former will. In point of reason, we can see no valid distinction in the two cases. The evil results flowing from each are the same — a like violation of the repose of titles, and a like uncertainty as to the conclusiveness of judicial determinations.
The only authority, precisely in point, which we discover on the question, is found in Mr. Freeman’s note to Waters v. Stickney, 90 Amer. Dec. 137, cited supra. He says: “ Offering a codicil after the probate of a former will-is said *227to be, in effect, an offer for probate of a later will; and where (as by statute in some States) the validity and status of a will can not be contested after a certain period, it is held that the offer for probate of a codicil amounts to a contest of the will or probate, and must be made within the prescribed time.” He cites in support of this assertion the case of Adsit's Estate, Myrick Prob. Rep. (Cal.) 266. We do not doubt the correctness of this conclusion as announcing the safer and better view of the law.
The contest sought to be inaugurated by the present bill has in view the judgment of the Probate Court Which established the codicil, in December, 1886. The bill was filed in October, 1888, being fully within the statutory limit of five years. That this codicil was a will, within the meaning of the statute (Code, 1886, § 2000), such as may be contested in the mode prescribed, there can be no sort of doubt. This fact is in no wise affected by the further consideration, that the attempt to establish it in the Probate Court was itself a contest of a prior will, to the provisions of which the codicil was partly repugnant. And there is, in our opinion, quite as little doubt, that the complainant brings herself within the terms of the statute, as not only being interested in the will, but as one who had not contested the validity of the paper upon its presentation to the Probate Court for establishment, as she might lawfully have done under the provisions of section 1989 of the Code (1886).
It may be true, as contended, that a decree rendered by the Chancery Court, upon a bill of this kind being filed, either establishing or annulling the probate of the will, would be final and conclusive as to the validity of the will, in all courts and upon all persons, until set aside or reversed in some direct proceeding. It was so decided in Hunt v. Acre, 28 Ala. 580. But no other interested person is here shown to have assailed the probate of this codicil in a chancery proceeding, and hence that principle can have no application here.
The question under discussion is raised by the fourth assignment of error, and that assignment is based on the action of the chancel] or in refusing to sustain the sixth ground of contest. The substance of the objection is, that the Probate Court had permitted the probate of a codicil to a will which had itself been duly probated more than twenty years before the presentation of the codicil. The chancellor erred in not sustaining this objection, which sufficiently appears from the *228pleadings in tbe ease, and tbe admitted facts contained in tbe agreement of’ counsel, irrespective of tbe testimony omitted from tbe record.
Tbe decree will be reversed, and a decree will be rendered in this court sustaining tbe sixth ground of objection to tbe validity of tbe codicil probated on December 6tb, 1886; and adjudging that said judgment be declared null and of no effect. Tbe appellee will be taxed with tbe costs of this appeal, and tbe costs in tbe court below be equally divided’ between tbe appellants and appellees.
Reversed and rendered,'