delivered the opinion of the Court, in (Jumherland, at the ensuing term.
This is an action of debt for a penalty alleged to have been incurred by the defendant under the statute of 1823. ch. 51. sec. Jl.in neglecting to file the last will and testament of John Moore for probate, as required by that section. The will bears date May Í4,1813 j «nd it is not pretended that it was ever so filed for that purpose. The *494testator died Sept. 3, 1823. Several circumstances have been relied upon as constituting a substantial defence.
1. It is said tlr t the plaintiff is not entitled to maintain the action, because he is not “ interested in the estate devised by such willand that the statute authorises no one who is not so interested to sue fot the penalty.
2. That the will before mentioned, was revoked by the testator.
3. If not, that the neglect of the defendant was not the consequence of any such motives and intentions as could subject him to the severe penalty of the statute.
4. The statute of limitations.
With respect to the first objection, the reply is, that by inspection of the will it appears that one'third of the estate was devised to the plaintiff on certain specified conditions; and, therefore, he must be considered as manifestly interested, unless we have evidence before us of its revocation.
As to the second objection, the question is, whether wre have such evidence and are authorized in this action, to pronounce,upon its sufficiency as establishing the fact of revocation. According to our laws, the probate of wills is within the exclusive jurisdiction of'the courts of probate, and of this court, on appeal, sitting as the Supreme Court of probate; and, except in a specified case, this court has no original probate jurisdiction, and no jurisdiction whatever sitting and proceeding as a court of common law, as decided m Small v. Small, 4. Greenl. 220, and the cases there cited. After a will has once been duly proved and approved, its existence and validity as a last will and testament cannot in any court be questioned ; nor can any evidence of its revocation have the least operation or influence. Proof of revocation must be presented to the Judge of probate by way of objection to the probate; and, on appeal from the decree below, this court, as the Supreme Court of probate, can decide upon the question of asserted revocation; but in no court of common law can that question be settled, and, of course, all evidence bearing upon the point is irrelavent and of no importance. In the case before us, the will has not been proved and approved ; and the defendant contends it never could have been, because it had been revoked. But *495ibis argument proceeds on the assumption of a fact as true, which we have no jurisdiction in this cause to hear and determine. The law never intended that an executor should settle the question of revocation for himself and all concerned; and justify his neglect to present it to the proper tribunal for probate, upon his own decision, and according to his own good pleasure. Such a course of proceeding could not, on the ground of innocent intentions and pure motives, exempt an executor from the penalties of the statute, even if certain peculiar circumstances might, in legal contemplation, amount to a defence of such an action as this, on the principle mentioned and relied upon in the defendant’s third objection.
As to this objection, there are numerous facts stated in the report, showing not only a design in the testator to make a distribution of his estate in Iris life time, by deeds and certain arrangements mentioned, but that such design was in many if not all respects, carried into execution ; and for the purpose of. shewing the defendant’s motives in neglecting to present the will for probate, we do not perceive any impropriety in the admission of such evidence to the jury; the effect of it is now the subject of consideration. Upon a careful examination of the report, we do not find any proof showing that the executor knew the facts in relation to the testator’s settlement of his estate among his children, until the time of the trial of this cause ; and that he acted under the influence of any such knowledge in the neglect of his duly; but in August 1820, he informed the heirs of the testator that John said he had a deed, but that he, the defendant, did not believe it, having in vain searched the records to ascertain the fact. It is true, the defendant offered to prove that one of his own witnesses, on the day of the testator’s funeral, told him he had nothing to do with the will, as the property had all been conveyed to John; but such evidence was properly rejected, and clearly inadmissible.
With respect to the statute of limitations, Stat. 1821. ch. 62. sec. 14. though it may he given in evidence, yet it cannot avail the defendant, as to the amount of penalty during the year next preceding the commencement of the action ; for by the terms of the section on which the action is founded, the penalty is incurred monthly, and therefore, at the end of each month of delay, the right of action accrued-*496As to ^he want of a negative averment in the declaration respecting an excuse for the defendant’s delay, our only reply is, that the objection is not' regularly before us. The proper mode of presenting it for decision is on motion in arrest of judgment, or on error. No motion has-been filed. There must, therefore, be judgment for the plaintiff; but considering all the facts in the case in relation to the estate and the disposition of it by the testator after the will was made, and what were in all probability his understanding and intentions, and those of the family; and considering also that the statute has given us so broad a discretion, we feel disposed to exercise it mercifully, and accordingly shall enter'judgment in favor of the plaintiff for twenty-one dollars, and costs.