The opinion of the court was delivered by
Me. Chief Justice Simpson.Elisha Poole, late of Spartanburg county, died in March, 1865, leaving of force a last will and testament. He also left surviving three children, and the children of a deceased son, Luther Poole. He died possessed of certain real estate, located in said county, and, also, of personal property.
In the second clause of his will he directed his land, three slaves and his stock in the South Carolina Railroad and South *330Western Railroad Bank to be appraised, after dividing bis land into two tracts.
In the third clause he “ bequeathed ” to his wife, Plarriet Poole, during her life, one of these tracts, the homestead, and, at her death, to his two grandsons, William Thomas Poole and Buchanan Poole, to be divided as nearly equally between them as practicable, both as to quality and quantity. He, also, in this •clause, gave to his wife a negro boy, Ben, and, at her death, to his grandson John Washington Thomas. The two first named grandsons were two of the children of his' deceased son Luther, and John Washington Thomas was the son of his daughter Martha C. Thomas, one of the plaintiffs.
In the fourth clause he devised the other half of his land to his daughter Martha C. Thomas, during her natural life, and, at her death, to be equally divided between and among her children, share and share alike; but, should his daughter die leaving no child or children or lineal descendant surviving her, he then directed that said land be sold, and the proceeds divided among his children. * * *
In the fifth clause he bequeathed to his son Calvin Poole, the three negroes he had directed previously to be appraised. In the sixth he bequeathed his railroad stock to his son Washington Poole.
In the seventh he stated “ that it was his will and desire that, should the appraisement before directed show any inequality in the value of the ‘ legacies ’ to his children, for the purpose of making them all equal the legatee or legatees receiving the larger share or shares, shall pay in money to those receiving the smaller share or shares until all shall be equal, before they shall be entitled to ■ receive these legacies; provided, that should my daughter Martha C. Thomas be entitled to any money, the same shall be paid to John B. Cleveland, whoria I hereby appoint her trustee.” * * *
In the ninth clause he directed that all the rest and residue of his personal estate * * * should be sold * * * and, after payment of debts, the proceeds to be equally divided between his children, share and share alike, the portion going to his daughter Martha C. Thomas, to be paid to her trustee.
*331In the tenth he said: “In order to make my grandchildren, the children of my deceased son Luther Poole, equal in the distribution of my estate, I will and devise that the land bequeathed to them in the 3d clause of my will, be taken at valuation, and if the value thereof amounts to more than equal share, that they pay back in money to their brothers and sisters until all are made equal.”
No executor was appointed in the will, and Washington Poole, a son of the deceased, administered with the will annexed. The appraisement of the property directed in the will to be appraised was had, and the administrator with the will annexed, finding it utterly impracticable to carry out the provisions of the will according to its terms, (because of the fact that the equalization directed could not be made, the parties being unwilling and unable to take the bequests and devises upon the conditions imposed, and because of the emancipation of the .slaves,) with the knowledge and consent of most of the parties of age, if not all, and, as it seems, at the earnest solicitation of Mrs. Thomas, one of the plaintiffs herein, instituted proceedings in the Probate Court, in the nature of an action for partition, the purpose being, as stated in the petition, to have the real estate and railroad stock sold, and the estate settled according to the spirit of the will. The minors were all mentioned, and process prayed to bring all parties in, and guardians ad litem ■appointed for the minors to superintend and protect their interests, but no process was asked to bring in such of the plaintiffs in this action who are the children of Mrs. Thomas, it being understood that they had no such interest in the estate as entitled them to be made parties.
The Probate Court entertained jurisdiction, and finally made the following decree, to wit: “ The parties in interest in this proceeding Having had notice of the same and having appeared, do consent that all the land be sold. It is therefore ordered that the land, together with the railroad stock, all be sold on the first Monday in November next, or on some suitable sales-day thereafter, on one and two years’ credit, with interest from date, except costs, which must be in cash on day of sale. This 11th day of October, a. d. 1872.” The sale took place under *332this order, and a settlement of the estate was made in the Probate Court in December, 1874, by which the proceeds were, divided in equal shares between Washington Poole and Mrs. Thomas, the two living children of the testator, and the heirs of Calvin Poole and the heirs of Luther Poole, the two deceased sons of the testator. In accordance with this settlement, the proceeds have been in part, if not in whole, paid to the parties, or to their guardians; the portion going to Mrs. Thomas having been paid to a trustee, John W. Thomas, her son, who, upon her petition, had been appointed her trustee by the Probate Court, and who had given a sufficient bond with justified surety. The plaintiffs, Mrs. Thomas and her husband, and John W. Thomas, the trustee, it appears, were present at the sale and at the settlement, and not only made no objections, but were active in bringing it about.
The proceeding now before the court is an action brought on June 12th, 1879, by Mrs. Thomas and her husband and their children, to set aside and vacate the Probate Court proceedings, and have a settlement de novo, on the ground that the children of Mrs. Thomas, who, with herself and husband, are the plaintiffs in this action, were not made parties to said proceedings, and, therefore, they are not bound thereby in any event; and, also, on the ground that said proceeding being for partition of real estate, the Probate Court had no jurisdiction.
The case was referred to a referee, with instructions to take the testimony and report his conclusions of fact. Upon this report the case came on for hearing before Judge Fraser, who, in August, 1881, filed a decree, in which, after adjudging the rights of the several parties, and ruling that the Probate Court was without jurisdiction, whether it was regarded as a proceeding in partition or a testamentary matter, and, also, that the. Probate Court had no power to appoint a trustee for Mrs. Thomas, he ordered the judgment of the Probate Court and all actions thereunder to be annulled, the lands to be resold, a recommittal of the case to the referee to report as to the shares of the different parties, the amounts which had been paid them, and some other matters preparatory to a final settlement, including a proper trustee for Mrs. Thomas.
*333From this decree all parties have appealed. The administrator, Washington Poole, appeals upon the ground mainly that the court erred in holding that the Probate Court was without jurisdiction to order the sale of the lands and to appoint a trustee for Mrs. Thomas, and, also, in holding that the payments made under the settlement to the trustee of Mrs. Thomas and the guardian of William Thomas Poole and James Buchanan Poole were void, and in not holding that the parties to the Probate Court proceeding were estopped.
The plaintiffs herein, to wit: Mrs. Thomas and her children, have appealed on the grounds: 1. Because the Circuit judge erred in construing the word “ legacy ” in the seventh clause of the will so as to include the land devised to Mrs. Thomas in the fourth clause. 2. In not holding that if in the seventh clause the word “ legacy ” includes lands devised to Mrs. Thomas, that then Mrs. Thomas should only account for the value of her life-interest therein. 3. In not holding that the children of Mrs. Thomas took a remainder in fee in the land devised to her. 4. In directing a sale of the lands without giving the plaintiffs an opportunity to pay such sum as might be necessary to equalize the defendants’ interest and keep the land. 5. In directing the costs to be paid by the proceeds of the sales, instead of charging Washington Poole therewith.
William Thomas Poole and James Buchanan Poole appeal: 1. Because the Circuit judge held that if they received their share of the land after coming of age, they are now estopped from claiming any further interest therein or disputing Washington Poole’s title (who was the purchaser at the Probate Court sale). 2. In not holding that the real estate should be appraised of its value immediately after the death of the testator. 3. In directing a sale of the real estate. 4. In directing the costs to be paid out of the proceeds of sale.
Mary E. Bryant and her husband, E. G. V. Bryant; Harriet M. Neighbors and her husband, Julian Neighbors • Baymoth V. Poole, Sarah H. Poole and Luther B. Poole, who are the children of Luther Poole, a deceased son of testator, and brothers and sisters of the two grandsons named in the third clause of the will as remaindermen to the widow of the testator, also have *334appealed: 1. Because the judge erred in holding that the interest of any of the children of Luther Poole, which was paid to their guardians, was properly paid, and amounts to a payment pro tanto on their shares. , 2. In directing the costs to be paid out of the sale instead of charging Washington-Poole therewith.
The fundamental question in the appeal is as to the jurisdiction of the Probate Court, and it seems to be so regarded by the appellants on all sides. We will first consider this question as to the subject-matter involved. It has been discussed, in part, as if it was a case of ordinary partition of real estate. The Circuit judge considered it in that aspect, and, under the case of Davenport v. Caldwell, 10 S. C. 331, held that the Probate Court had no power in the premises. He also considered it under section 20, article IV., of the constitution, by which jurisdiction in “all matters testamentary ” was conferred upon the Probate Court ; and he ruled that this did not apply, while admitting that it covered wills and testaments disposing of personal property, yet, inasmuch as the constitution does not use the word “ devise,” which is the technical word as to real estate in a will, he held it did not apply to devises.
It is true, since the case of Davenport v. Caldwell, and while it stands, this court cannot hold that the act of general assembly on this subject, and which was declared unconstitutional in that case, conferred any jurisdiction upon the Probate Court; and if we were considering this question as governed by that act, we would be compelled to sustain the Circuit judge. But Caldwell and Davenport did not consider the rights of minors as protected by the Prqbate Court under that provision of the constitution which confers jurisdiction upon that court “in business appertaining to minors.” The parties were all adults in Davenport v. Caldwell, and the rights of minors were not adjudged there. This is still an open question, as the precise powers of the Probate Court under those terms have never yet been distinctly and authoritatively adjudged by this court that we are aware of, nor is it absolutely essential to decide it now.
We think the recent cases of Herndon v. Moore and Schumpert v. Smith, 18 S. C. 339, 358, are in point here, where this court held that whatever might be the true solution of the ques*335tion as to the powers of the Probate Court in a strict matter of partition, unencumbered with the other questions of “ business appertaining to minors ” “ or mátters testamentary,” yet, where that court, in cases arising before Davenport v. Caldwell, assumed jurisdiction and acted without appeal, that upon the principle of communis error facit jus, the judgment must stand. We think that the doctrine established in these two late cases referred to supra, if this case is to be regarded as a partition case, must apply; and upon that doctrine the judgment below must be reversed. After the very able development and vindication of that principle as applicable to the numerous partitions by the Probate Court in every section of the State before Davenport v. Caldwell, by Mr. Justice McGowan in the cases cited, it will not be necessary for me now to do more than to refer to them as settling the question here, at least so far as this case is to be regarded as a partition case.
Was it a case of that kind? The property involved, consisting mostly of realty, belonged to Elisha Poole in his life-time. Had he died intestate this would have descended to his heirs-at-law, all of whom were before the Probate Court; but he died leaving a last will and testament, in which he disposed of this property to certain of those who'Avere his heirs, upon certain conditions. It turned out that these conditions could not be complied Avith, and being conditions precedent, and not happening, the devises and legacies did not attach. The will became inoperative as to these, and the title to the lands descended as in cases of intestacy, and the proceeding in the Probate Court, though not in form strictly a partition proceeding, yet Avas so, substantially, and we think should be governed and controlled by the principles which have been established in such cases.
Such being our opinion, if the proper parties Avere before the court, it will be unnecessary to discuss the questions raised as to the rights of the parties under the different clauses of the will. Neither will it be necessary to discuss the poAvers of the Probate Court as to the “matters testamentary” provision of the constitution.
Next, Did the Probate Court obtain jurisdiction over the necessary parties? The following statement is found in the *336judgment of the Probate Court, to wit: “ The parties in interest in this proceeding, having had notice of the same, and having appeared, do consent that all the land be sold,” &c. The Court of Probate is a court of record, and the record in such courts, as styled by Mr. Bigelow, is a remembrancer of what took place during the progress of the case; it is a memorial of the proceeding, and generally it imports such absolute verity that a party cannot aver as error of fact a matter contrary to the record.
The Probate Court, in its jurisdiction, is not an inferior court, but is so important that the same rule of construction is to be made in favor of its jurisdiction and the effect of its record as is applied to courts of general jurisdiction. Hem. Estop., p. 148, § 140. Besides, there is no allegation in the complaint that there was a defect of parties in the case before the Probate Court, except as to the plaintiffs, other than Mrs. Thomas and her husband. Nor did the referee or Circuit judge find, as a matter of fact, that there was such defect. Under these circumstances, we cannot but assume that all the parties named, except the children of Martha C. Thomas, who are plaintiffs here, were properly before the court.
At this stage of the case we cannot look into the irregularities, if any, of service of summons, the appointment of guardians ad litem, &c. There was no exception as to these matters to the referee’s report, nor any ruling made in reference thereto by the Circuit judge. The judgment of the Probate Court having stated that all parties had notice and had consented, until this is assailed directly in a proper way we are concluded thereby and must act upon it as a fact.
As to the plaintiffs, children of Mrs. Thomas: Their interest in the land devised to their mother in the fourth clause of the will, was a contingent interest — a contingent remainder — contingent upon their survivorship of their mother. It was not necessary, therefore, that they should have been made parties in the Probate Court. Nor have they yet any such interest as can be adjudicated by the courts. It is not at all certain but what Mrs. Thomas may outlive all of her children. It may be that the action of the Court now will not bind them if they should *337happen to survive, but of this we give no opinion; we only mean to say that, until they have vested rights, they are premature in asking the assistance of the court by way of protection.
We concur with the Circuit judge that the Probate Court had no power to appoint a trustee for Mrs. Thomas, but this does not affect the main question here. It only affects the question of payment of her interest to this trustee. It seems that the trustee was appointed upon the petition of Mrs. Thomas, and through her agency — her own act — he received these payments; we think she is now estopped from repudiating them, or, which is the same thing, she must account in any future settlement for what he has received.
The payments to the guardians of the minors must be sustained.
It is the opinion of this court that the proceedings in the Probate Court should have been sustained except as to the appointment of a trustee for Mrs. Thomas; and to this end it is the judgment of this court that the judgment of the Circuit Court be reversed.