(concurring). I have entertained grave doubts in this ease relative to the propriety of the judgment of the trial court, particularly with reference to the portion sustaining the decree of the county court denying the plaintiff the benefit of the exemption provided for by § 8725, Comp. Laws, 1913. Under this section it is the duty of the probate judge to set apart to the surviving wife that portion of the estate of the deceased which would be exempt from execution if he were living, and other property to the value of $1,500. The purpose of this statute is plain. It is designed to protect the beneficiary from the contingencies incident to a sudden deprivation of reasonable means for securing the necessaries of life, and where such a policy is so clearly evidenced by the legislature, it is the duty of the courts to see that the benign legislative purpose is not thwarted or defeated even by the prev*176ious private contract of-the immediate beneficiary. To this end, contracts involving a waiver of tbe benefit of exemption statutes are generally held to be void.
But in the instant case there appear to be two obstacles which prevent the granting of the relief sought. First, the record shows that everything that could have been done to apprise the plaintiff that her rights were in process of determination in the county court was done; that she was fully advised of the contention of those interested adversely to her as to the effect of her antenuptial agreement; that she took counsel of an attorney, both for the purpose of ascertaining the effect of her antenuptial agreement and of the terms of the final decree which she knew was entered; and that she was advised of her right to appeal. In view of the above facts, it is difficult to see how a finding of fraud can gain any support from the evidence. Clearly, fraud is not to be inferred from the mere obtaining of a waiver of the statutory notices of the procedure incident to the settlement of an estate. But, of course the plaintiff, in signing the waiver, had a right to assume that the estate would be legally administered, which would include the setting aside of the exemption provided for by § 8125. Inasmuch, however, as the plaintiff had timely warning that the estate was not so administered as to secure to her the benefit of this exemption, it was her diity to pro-need in the legal way to secure a modification of the final decree. I fail to see wherein the record discloses that there was any fraud on the part of the defendants, or their attorney, that prevented the plaintiff from .taking legal proceedings to protect her rights.
There being no fraud shown, the second objection to the maintenance of this action becomes insuperable. It is elementary that the proper way to correct an erroneous judgment of an inferior court is either by an appeal or, upon a proper showing made, by a proceeding to open or vacate the judgment. 23 Cyc. 1061. The judgment of the probate court, being conclusive on the parties as to the matters adjudicated therein, subject to the right to appeal, which was not exercised, and subject also to the exercise of the equitable powers of a court of general jurisdiction to set aside the decree for fraud (§ 8809, Comp. Laws 1913), as pointed out in the former decision of this case upon the demurrer to the .complaint (Fischer v. Dolwig, 29 N. D. 561, 151 N. W. 431), which fraud was not established, the plaintiff is without remedy against these *177defendants in the premises. There must come a time when the judgments of the courts having jurisdiction to enter, them become finally binding upon the parties. The remedy open to a suitor to impeach a judgment for fraud within the time prescribed by § 8809, Comp. Laws 1913, cannot be considered as a mere substitute for an appeal, nor can the statute be given an interpretation which would have the effect of extending the time for appeal. I concur in the opinion of Mr. Chief Justice Bruce, affirming the judgment of the district court.