half interest in the land devised to her and her sister as fully set forth in said will; that something was said at the time by Kite about a deed, but her father declared it was not necessary, that he had made it all right in his will, which he then gave to her sister and her husband, telling them to take it and keep it, that the property was theirs, and all parties having implicit confidence in the judgment of her father acquiesced in all that he said and did, and everything was done and accepted in good faith.

Upon the pleadings and proofs the circuit court entered a decree appointing a commissioner to convey to F. W. Kite and Dora, his wife, the land claimed by them in their bill, and to that decree an appeal was awarded to Delilah Milton.

The first assignment of error is to the action of the court in overruling the demurrer to the plaintiff's bill. We think that the bill sets out a contract and such part performance of it as entitles the plaintiffs to a decree, if sustained by the proof.

With respect to the charge that the bill is multifarious, as containing two grounds of relief-the specific performance of a contract, and the setting up of a will-we are of opinion that, even conceding that the two grounds are sufficiently stated, they are but alternative statements of the same cause of action. The plaintiffs had but one object to make good their title to the parcel of land in controversy. They claimed that Daniel F. Brown had made a will, in conformity with the statute, which had never been revoked, and which they prayed might be set up, in which will the land which they claimed was devised to them; and if this could not be done, they prayed that the contract which they stated in the bill might be specifically executed. The case comes within the influence of Seefried v. Clark, 6 Va. App. 274, so far as the charge of multifariousness is concerned.

We are further of opinion that the bill states a case for the specific execution of a contract which has been so far performed upon the part of the plaintiffs as that it would operate a fraud upon their rights to deny to them the relief which they seek.

Among the depositions taken on behalf of the plaintiffs was that of Lenora A. Driscoll. The defendants excepted to her as being incompetent, the contention being that she was a party to the contract which is the subject of investigation.

Kite, at the instance of Daniel F. Brown, sold his land and paid to Mrs. Driscoll the sum of $1,200 upon the faith of Brown's promise that he would devise to Kite and his wife the share in his real estate which in the will he had executed he had devised to Mrs. Driscoll. Kite sold his land, paid the $1,200 to Mrs. Driscoll, and Daniel F. Brown wrote the reecipt for the money. Mrs. Driscoll has no interest whatever in this litigation. As between Brown and Kite, she is not even liable for costs, and upon that ground her testimony was properly admitted.

The will, its execution and its contents are fully established by the proof. That Kite sold his land at the instance of Daniel F. Brown; that he went to live with Daniel F. Brown; that he took possession of the property in dispute; that he improved it and built a house upon it; that he and his wife remained with and cared for Daniel F. Brown and his wife during their lifetime, is fully proved.

It is true that "an agreement to dispose of property by will cannot be specifically enforced, not in the lifetime of the party, because all testamentary papers are from their nature revocable; not after his death, because it is no longer possible for him to make a will; yet courts of equity can do what is equivalent to a specific performance of such an agreement by compelling those upon whom the legal title has descended to convey or deliver the property in accordance with its terms, upon the ground that it is charged with a trust in the hands of the heir at law, devisee, personal representative, or purchaser with notice of the agreement, as the case may be." Burdine v. Burdine, 98 Va., 519, which cites 3 Parsons on Contracts, section 406 (6th ed.); Hale v. Hale, 90 Va., 728.

For these reasons we are of opinion that the decree of the circuit court should be affirmed.

Affirmed.

SAUNDERS v. LINK, ET ALS.

(Richmond, November 21, 1912.)

1. WILLS-Probate Proceedings-Clerks of Courts-Code, section 2544. The right to impeach or establish a will, conferred by section 2544, applies expressly to an ex parte probate proceeding by a court, and operates in favor of "a person interested, who was not a party to the proceeding." The section was not intended to include a clerk, or to apply to an ex parte probate by a clerk. While the order of the clerk is a judicial act, it is wholly distinct

from the exercise of jurisdiction in like cases by the court, and its exercise is regulated by essentially different methods of procedure.

2. STATUTES-Construction.-Where the language of a statute is plain and within the competency of the legislature, it is the province of the courts not to rewrite it but to give it effect as they find it. 3. JUDGMENTS Court of Probate. The sentence of a court of probate having jurisdiction of the subject is a judgment in rem, and until reversed binds not only the immediate parties to the proceeding, but all other persons (though infants at the time) and all courts. A judgment of a court of general jurisdiction, acting within the scope of its powers is presumed to be right, and such judgment is not subject to collateral impeachment unless a want of jurisdiction appears from the face of the proceedings. 4. EQUITY-Jurisdiction-Wills-Probate by Clerk-Code, secs. 2544, 2639-a.-Where a will is admitted to probate by the clerk of a court and no appeal is taken from his order as provided by sec. 2639-a, a court of equity has no jurisdiction to maintain a suit under section 2544.

Appeal from Circuit Court of Giles county.

W. B. Snidow, for the appellant.

Reversed.

Williams & Farrier, Jackson & Henson, for the appellees.

WHITTLE, J.:

William A. Huffman died in the year 1908, survived by a widow, and leaving as his heirs at law adult children and infant grandchildren. Prior to his marriage Huffman made. a will giving his entire estate to Mary F. Saunders, whom he subsequently married, and appointed her his executrix. On April 14, 1908, the will was admitted to probate by the clerk of the Circuit Court of Giles county in his office, and the widow qualified as executrix.

In September, 1909, Maggie Link, one of the adult children brought a suit in equity in the circuit court of said. county against the widow and heirs, in which she set out the foregoing facts, and insisted that the subsequent marriage. of the testator absolutely revoked the will under Va. Code, 1904, sec. 2517, and prayed that it might be treated as a nullity, and that it be adjudged that Huffman died intestate. The bill furthermore prayed that a deed to the land. in controversy from the widow to C. A. Saunders be set aside; that dower be assigned to the widow; and that the residue of the land be partitioned among the heirs and for general relief.

C. A. Saunders demurred to the bill. The controlling ground of demurrer is that the will having been admitted to probate by the clerk and no appeal having been taken from the order as provided by statute the sentence was final and conclusive and was not amenable to collateral attack, and that consequently the circuit court was without jurisdiction to maintain the suit.

The court overruled the demurrer and directed an issue to be tried to ascertain whether any, and if any how much of the paper in question was the will of the decedent. Afterwards, by a vacation decree, the court set aside so much of the former decree as directed an issue devisavit vel non, and adjudged that the marriage of the testator operated an absolute revocation of the will, that the order of the clerk admitting the same to probate did not give the will any validity whatever, and granted the relief prayed for in the bill. From that decree this appeal was allowed.

The Virginia Constitution (1902), Art. 6, sec. 101, ordains that "The General Assembly shall have power to confer upon the clerks of the several circuit courts jurisdiction, to be exercised in the manner and under the regulations to be prescribed by law, in the matter of admission of wills. to probate, and of the appointment and qualification of guardians, personal representatives, curators, appraisers and committees of the estates of persons who have been adjudged insane or convicted of felony, and in the matter of the substitution of trustees."

The legislature, in accordance with the above provision, by act approved May 15, 1903, conferred upon clerks of circuit courts, among other powers, jurisdiction to admit wills to probate. Acts 1902-3-4, p. 386. This act was so amended by an act approved March 12, 1904, as to extend this jurisdiction to clerks of corporation courts, except that in the city of Richmond the jurisdiction was vested in the clerk of the chancery court. Acts, 1904, p. 205. The amended act was declared unconstitutional by this court in so far as it attempted to confer probate jurisdiction on the clerk of the Chancery Court of the city of Richmond, such clerk not being either within the terms or intendment of section 101 of the Constitution. That phase of the case involved the constitutionality of the act only with respect to the clerk of the chancery court, and the decision was confined to the precise question in issue. McCurdy v. Smith, 107 Va., 757, 1 Va. App., 821.

The court at page 761 gives the following reason for the constitutional provision: "This jurisdiction, outside the cities was formerly lodged in the county courts, which held monthly terms in each county of the State; but inasmuch as those courts were to be abolished, and the circuit courts only convened once in three or four months, provision had to be made for the convenient and speedy dispatch of those important functions."

The amended act referred to was carried into section 2639-a, Va. Code, 1904. In addition to this specific act passed expressly to give effect to section 101, certain sections of the Code with respect to the probate of wills were so amended as to conform to changed conditions. Thus, section 2533 declares, that the circuit and corporations courts, "and the clerks of the said circuit and corporation courts, shall have jurisdiction of the probate of wills according to the following rules:" Then follows the bestowal of territorial jurisdiction upon these tribunals, and the section concludes with the above mentioned proviso as to the city of Richmond.

Section 2538 prescribes that "A person offering or intending to offer to a circuit court, or to the clerk thereof, or to a corporation court a will for probate, may obtain from the clerk of such court process directed to the proper officer of any county or corporation, requiring him to summon any person interested in such probate to appear at the next term of such court, or before such clerk, on a day named in such summons, to show cause why the said will should not be admitted to record."

And section 2539 empowers "A circuit or corporation court to which a will is offered for probate, or into which the question of probate is removed by appeal or otherwise," to cause all persons interested in the probate to be summoned to appear on a certain day.

Having thus drawn the distinction between a "court" and a "clerk" in the two preceding sections, section 2544, which remains unchanged, declares that "a court may, however, without summoning any party, proceed to probate, and admit the will to record, or reject the same. After a sentence or order under this section, a person interested, who was not a party to the proceeding, may, within two years, proceed by bill in equity to impeach or establish the will, on which bill a trial by a jury shall be ordered, to ascertain whether any, and if any how much of what was so ordered