principles of law are founded upon the truest sense of right and wrong, and error is incompatible with right. As herein indicated, I believe this is the first time the questions herein discussed have been thoroughly considered on legal principles and according to the science of law in this state. And because the opinion in this case will foreclose further discussion of those questions, at any rate during the time I will have the honor to be a member of this court, I have felt constrained, once for all, to examine at such great length, and with all the care and skill I possess, the authorities and decisions bearing on this question, and to announce my conviction that the rule laid down by the majority opinion in this case will enlarge the rights of municipalities and of citizens inter sese, and produce much litigation that is wholly beyond the contemplation of the common law and the statutes of this state.

With the greatest respect and best feeling for my brother judges who have reached a different conclusion, I express the foregoing as my deep-seated conviction of the right concerning the questions discussed.

ROBBINS v. BOULWARE. (Supreme Court of Missouri, Division No. 2. June 20, 1905.)

1. HOMESTEAD WIDOW'S RIGHTS-SALE OF FEE FOR DECEASED HUSBAND'S DEBTS.

The fee of the homestead of a widow subject to her right is liable to sale by order of the probate court for payment of debts of the deceased husband.

2. ESTATES OF DECEDENTS-PROCEEDINGS OF PROBATE COURT-SALE OF LAND-PETITION -AFFIDAVIT.

Though the statute requires that a petition for the sale of lands of a decedent for payment of debts be verified by affidavit, the absence thereof is a mere irregularity, and, the parties interested being in court by due process, the irregularity does not render the proceedings void, or subject to an attack collaterally.

3. SAME PROCESS-PUBLICATION OF NOTICE.

Rev. St. 1879, § 148, requiring notice of proceedings for the sale of land of a decedent for payment of debts to be published four weeks in some newspaper before the term of court, does not require the publication for the four weeks immediately preceding the term of court. [Ed. Note. For cases in point, see vol. 22, Cent. Dig. Executors and Administrators, § 1405.]

4. SAME · ADMINISTRATOR'S SALE - NOTICEINSUFFICIENT NOTICE JUDGMENT COLLATERAL ATTACK.

Though only twenty-two days' notice was given of an administrator's sale, when the statute required four weeks' notice, the probate court having found, in its order of sale, that the notice had been published for four weeks, it could not be attacked collaterally because of insufficiency of the notice.

[Ed. Note. For cases in point, see vol. 22, Cent. Dig. Executors and Administrators, §§ 1449-1454, 1554.]

5. SAME-AFFIDAVIT OF PUBLICATION-SUFFICIENCY-COLLATERAL ATTACK.

The probate court, in an order for the sale of lands of a decedent, having found that

due publication had been made of the notice of the sale, the order was not subject to collateral attack, though the proof of publication was made by the publishers as a firm.

[Ed. Note.-For cases in point, see vol. 22, Cent. Dig. Executors and Administrators, §§ 1449-1454, 1554.]

6. ADMINISTRATOR'S SALE-DELAY IN APPLI

CATION.

Where the first administration on an estate was by a son of deceased, who made no application to sell the real estate for payment of debts, and after his removal and the placing of the estate in the hands of the public administrator the widow immediately proceeded to have the land set off as a homestead, which was done, and it remained in her possession up to the time of her death, though an application by the public administrator to sell the land subject to the homestead was not made until 11 years after decedent's death, an heir could not complain on the delay in the application, in an ejectment suit brought 25 years thereafter.

Appeal from Circuit Court, Clark County; E. R. McKee, Judge.

Ejectment by Anna B. Robbins against M. Q. Boulware. From a judgment in favor of defendant, plaintiff appeals. Affirmed.

Appellant has filed an abstract of the entire record in this cause. In the brief, however, there is no detailed statement as to the contents of the abstract, but we find, after a careful consideration of the record, and a verification of it, that the respondent has made a fair statement of the general outlines of this cause, and with some modifications we have adopted it.

This is an action in ejectment, brought by plaintiff, now appellant, against the defendant, now respondent, to recover five-eighths interest in and to 492 acres in the northwest quarter of section fifteen (15), township sixty-three (63) north, range six (6) west, situate in Clark county, Mo. It is admitted and agreed by counsel: That the common source of title is William N. Brown, That he died on the 31st day of December, 1877, intestate, seised of the land, and that he left as his heirs at law his children, Newton A. Brown, Daniel E. Brown, Henry B. Brown, Rhoda Davis, Nettie Bash, Minie Barclay, and Anna B. Robbins. That he left his widow, who died July 26, 1891. That $100 is the reasonable rental value of the premises per year. That the defendant has been in the possession of this real estate since March 1, 1896. William N. Brown, the common source of title, died intestate December 31, 1877, leaving surviving him his widow, Mary A. Brown, and appellant and other heirs at law. That thereafter, at the May term, 1878, of the probate court of Clark county, Mo., Henry D. Brown was duly appointed administrator of said estate, gave bond, and entered upon the discharge of his duties as such up to the February term, 1888, of said court, when, upon the application to said court by A. D. Lewis, a creditor of said estate, by petition, upon due notice to said Henry D. Brown, such proceedings were had in said court that letters heretofore granted to him were by the said court revoked on account of

his failure to discharge his duties as such administrator and for failure to pay off the legal demands allowed against said estate. That thereafter, and on November 30, 1888, no one of kin appearing to administer, the probate court of Clark county, Mo., duly appointed Henry C. Schaffer, public administrator of said county, to take charge of and administer said estate. On application of Mary A. Brown, widow, at the November term, 1888, of said probate court, by petition, such proceedings were had in said court that at the February term, 1889, the whole of said real estate was set off to her as her homestead herein, which she occupied as such up to the date of her death, which occurred July 26, 1891. Henry C. Schaffer, public administrator in charge of said estate, on December 1, 1888, filed his petition praying for the sale of said real estate, subject to the homestead rights of the widow therein, and on the 24th day of December, 1888, at the November term of said court, an order of publication was directed and ordered by said court notifying all parties interested that at the next February term, 1889, of said court, and on the first day of said term, being the second Monday in February, 1889, and the 11th day of said month, an order would be made to sell the whole or such part as may be necessary to pay the debts of said estate unless the contrary be shown. At said February term, 1889, the order of sale was duly made by an order of record in said probate court. That thereafter the said administrator, after having the same appraised by three disinterested persons at the price of $300, as shown by said appraisement, in pursuance of the terms of said order, and at the May term of said court, after having advertised the same, sold said land at public vendue, and E. H. Connable, being the highest and best bidder therefor, became the purchaser thereof, and same was duly sold to him for the sum of $400. The sale was duly reported to the court, and said sale was approved, and deed regular on the face of it, containing all the necessary statutory averinents, ordered made to him for said real estate, which was done May 25, 1889. On the 7th day of December, 1895, the said E. H. Connable, for a valuable consideration, executed, acknowledged, and delivered to respondent, M. Q. Boulware, a deed for said premises, and respondent has had possession thereof, according to the admission in the record, since March 1, 1896. This presents in a general way what was done in respect to the sale of this land. As to the defects disclosed by the record in the petition, and insufficiency of the publication of notice of application for sale and notice of sale, and the proof of publication, we will fully treat of them during the course of the opinion. This case was, by agreement, tried before the court, no instructions asked or given by either party, and the finding and judgment was for respondent and against the appellant, and the latter brings

this case here for review by appeal from the judgment of the lower court.

Berkheimer & Dawson, for appellant. T. L. Montgomery and W. M. Boulware, for respondent.

Ow.

FOX, J. (after stating the facts). Numerous errors are assigned by appellant as grounds for the reversal of this judgment. The legal propositions submitted to us for consideration by learned counsel for appellant may thus be briefly stated: (1) It is insisted that the land in controversy, being the homestead of the widow, was not subject to sale under the order of sale by the probate court during the lifetime of the wid(2) That the sale of the real estate by the administrator was void, for the reason that the truth of the allegations of the petition was not properly verified by affidavit of the administrator. (3) That the probate court did not acquire jurisdiction of the persons interested in said land by reason of the insufficiency of the notice of publication and the proof thereof by the publishers; hence the order of sale was void and of no force and effect. (4) That the sale by the administrator is inoperative to pass the title by reason of the insufficiency of the notice of such sale. (5) That there was unreasonable delay in the application to the probate court for the sale of this land, and for that reason this sale should not be upheld. We will treat the propositions in the order named.

Upon the first proposition involved in this controversy, the question as to the right to sell this land in controversy, which was the homestead of the widow, by order of sale of the probate court, for the payment of the debts of William N. Brown, must be treated as settled, and no longer an open question in this state since the conclusions of this court were announced upon that proposition in the case of Keene v. Wyatt, 160 Mo. 1, 60 S. W. 1037, 63 S. W. 116. It will be observed that this case expressly disapproved the rulings in the cases of Broyles v. Cox, 153 Mo. 242, 54 S. W. 488, 77 Am. St. Rep. 714, and In re Powell's Estate, 157 Mo. 151, 57 S. W. 717, cited by appellant in this cause, so far as such rulings were in conflict with the conclusions reached in Keene v. Wyatt, supra.

The next insistence on the part of the appellant is directed to the absence of the signature of the officer administering the oath to the administrator and the affidavit attached to the petition for the sale of real estate. The affidavit is in proper form, and duly signed by the administrator, and blank space for the signature of the probate judge, who presumably would administer the oath. It is insisted that this failure in respect to the affidavit was fatal to the petition, and rendered the order of sale made in pursuance to this prayer void. We are unable to assent to this contention on the part of the ap

pellant. In Rugle v. Webster, 55 Mo. 246, there was a petition presented to the county court of Polk county, which was exercising probate jurisdiction, for the sale of certain lands belonging to the estate of the deceased. While the petition made all the necessary averments, it was defective in not being accompanied with an account of the administration and a list of the debts owing to and unpaid by the estate, and remaining unpaid, as the statute in force at that time required. The affidavit as to the truth of the allegation in the petition, which the statute required to be made, was not made by the administrator in person, but was made by an attorney instead. The court upon this petition ordered the sale of the land, and the sale was made in pursuance of it, and at the next term of the county court of Polk county the sale was approved. The deed by the administrator, which was regular in form, was executed and acknowledged to the purchaser at the administrator's sale in pursuance to the sale made. The heirs of the deceased in that case brought suit in ejectment as in this case to recover the land, and it was urged that the failure of the administrator to make the affidavit and to accompany his petition with an account of the administration and list of the debts due to and unpaid by the estate were such defects in the petition as rendered the order made upon it void. Wagner, J., speaking for the court, in response to the contentions made in that case thus clearly stated the law: "Although the proceedings may have been irregular, and the affidavits not made in literal compliance with the law, yet they are not such jurisdictional facts as would render them wholly void. Sufficient cause might have existed for a reversal in a direct proceeding brought for that purpose, but certainly there is no ground for a collateral impeachment. In the case of Overton v. Johnson, 17 Mo. 442, it was held that the accounts, lists, inventories, and appraisements which the statute requires to be filed with a petition for the sale of a decedent's real estate are not necessary to give the court jurisdiction, and that a failure to file them would not render the sale void. The court, speaking through Gamble, J., said: The jurisdiction is acquired by filing a petition praying the court to do an act or make an order which, under the statute, the court is competent to do. Whether the petition is in proper form, or sets forth sufficient facts, or is accompanied with the proper evidence, the court will decide in the exercise of its jurisdiction.' It was for the court, when the petition was presented, to determine its sufficiency, and, if it made an erroneous decision, the proper remedy was by appeal." To the same effect is Wilkerson v. Allen, 67 Mo. 502, where the same question arose as to the sufficiency of the affidavit, and it was again held that it was a mere irregularity, and was not such a jurisdictional fact as would render the pro

ceeding void. These cases are fully supported in other jurisdictions. Coon v. Fry, 6 Mich. 506; Overton v. Cranford, 52 N. C. 415, 78 Am. Dec. 244; Trumble v. Williams, 18 Neb. 144, 24 N. W. 716; Kleinecke v. Woodward, 42 Tex. 311; Myers v. Davis, 47 Iowa, 329. Probate courts of Missouri are established by the organic law, the Constitution of the state, and their judgments and proceedings are entitled to the same credit and presumptions accorded to those of general jurisdiction. Noland v. Barrett, 122 Mo. 181, 26 S. W. 692, 43 Am, St. Rep. 572. The order of sale by the probate court in this cause is predicated upon the allegations in the petition; and, while there is a requirement by the statute that the petition be verified by affidavit, the absence of such affidavit, in our opinion, was a mere irregularity, and did not deprive the probate court of jurisdiction of the proceedings. If the parties interested in said land were in court by due process, the absence of the affidavit in due form was a matter that could be contested upon the presentation of the petition; but that such irregularity does not render the judgment and proceeding void and subject to an attack in a collateral proceeding we think is too clear for discussion. There is a broad distinction between the proposition involved as presented in this case and the questions involved in the cases of Barhydt & Co. v. Alexander & Co., 59 Mo. App. 192, and Kincaid v. Griffith, 64 Mo. App. 673, cited by appellant. In those cases it will be observed that it was a proceeding under the statute to revive a judgment procured before a justice of the peace, and the affidavit required to be filed was the very basis of the proceeding, without which there could be no jurisdiction. Hence, in order to confer jurisdiction, it was essential that an affidavit in substantial compliance with the statute should be first filed.

This leads us to the consideration of the third proposition, which is the most vital one presented by counsel for appellant-as to the sufficiency of the process by which the parties interested in the sale of the land in controversy were brought into the probate court. It is insisted by appellant that the publication of the notice of application for sale of the real estate in the issues of the paper of January 11, 18, 25, and February 1, 1889, notifying all parties in interest to ap pear on the second Monday of February, which was February 11th, was not a compliance with the provisions of the statute, and was insufficient to give the probate court jurisdiction of the persons interested in said estate. This publication was made under the provisions of section 148, Rev. St. 1879, which, so far as it is applicable to this case, provides that "the notice shall be published for four weeks in some newspaper in the county in which the proceedings are had before the term of court at which said order will be made." It is argued by appellant that,

in order to comply with the statute above cited, it was necessary in this case that there should have been a publication in the issue of the paper of February 8, 1889. In other words, it is insisted that this statute means that the publication of the notice shall be for the four weeks immediately preceding the term of the court, and in support of this insistence we are cited to the case of Young v. Downey, 145 Mo. 250, 46 S. W. 1086, 68 Am. St. Rep. 568. We cannot agree to this contention by the appellant, and the case to which our attention is expressly directed furnishes no support for such contention. This statute simply requires that the publication of the notice shall be for 4 weeks-or, in other words, 28 days-before the term of the court at which the petition for the order of sale is to be presented. The mere fact that 10 or 11 or 20 days should elapse between the last publication and the term of the court by no means vitiates the publication of the notice. The statute does not provide that the publication of the notice shall be for the 4 weeks immediately preceding the term of court, but it simply provides that it shall be published for 4 weeks before the term of the court; and if the publication is made for 4 weeks, or 28 days, and if 10 or 20 days elapse between the last insertion of the publication and the term of court to which the application is to be made, this is a publication of the notice in compliance with the statute herein referred to, as much as if the publication had been made for the 4 weeks, or 28 days, immediately preceding the term of court to which the petition would be presented. In the case of Young v. Downey, supra, it was simply said that the first publication was on September 18, 1876, while the October term of the probate court began on the 2d day of that month, so that the length of time from the first publication to the first day of court was only 24 days, 4 days less than 4 weeks. It was there held that the requisite notice was not given, and the court was without jurisdiction to make the order of sale. With the announcement of the conclusions in that case we are entirely satisfied; but that is not this case. The publication of the notice in the proceeding now under investigation was for four weeks before the term of the court to which the publication was to be made for the sale of the real estate, and it is apparent between the date of the first publication of the notice on January 11th, 1889, to the first day of the term of the court, which was February 11th, 1889, there was a period of 31 days, and the notice of publication in this case does not fall within the class of publications denounced by this court in Young v. Downey. The publication of the notice in this case fully complied with the statute. Russell v. Croy, 164 Mo. 69, 63 S. W. 849; Ratliff v. MaGee, 165 Mo. 468, 65 S. W. 713; Young v. Downey, 145 Mo. 250, 46 S. W. 1086, 68 Am. St. Rep. 568;

Young v. Downey, 150 Mo., loc. cit. 324, 51 S. W. 751.

This brings us to the fourth contention of appellant, in which it is insisted that the administrator's sale was inoperative to pass the title to the purchaser of this land for the reason that the notice of said sale was not given in accordance with the statute in force at the time the sale took place. It may be conceded that only 22 days' notice was given of this sale, when in fact the statute required 4 weeks' notice prior to said sale in some newspaper printed in the county where the land was situated, if there be one. It must be observed in the discussion of this proposition that at the May term of the probate court of Clark county, Mo., Henry C. Shaffer, administrator of the estate of William N. Brown, deceased, made his report of the sale of this real estate. In said report the administrator states that he "did, on Saturday, the 25th day of May, 1889, between the hours of ten o'clock a. m. and five o'clock p. m. of that day, at the south door of the court house in the city of Kahoka, in said county, and during the sitting of the probate court held in and for said county, expose to sale at public auction to the highest bidder, upon the terms mentioned in said order, the real estate above described, having had the same first duly appraised by William McDermott, R. M. Boulware, and R. J. Wood, three disinterested householders of said county, they having first been duly sworn as appears by the affidavit of said appraisers and their certificate of appraisement herewith filed, marked 'Exhibit A,' and having given four weeks' notice of the estate to be sold, and of the time, terms, and place of sale by advertisement published in the Gazette-Herald, a newspaper published in this state, as appears by the affidavit of E. B. Christy, the publisher thereof, herewith filed, marked 'B'; and at said sale aforesaid E. H. Connable was the highest and best bidder for five hundred and fifty dollars, and the same was stricken off to him." This report of sale as made by the administrator was by the probate court of Clark county, by an order entered of record, duly approved and confirmed, and the administrator was ordered to execute, acknowledge, and deliver to said E. H. Connable a deed in due form of law, conveying to said E. H. Connable all the right, title, and interest which the deceased had in the same at the time of his death. By the notice of publication heretofore considered, all of the parties interested in said estate were in court at the time of the approval of this report. The approval of the report was a final judgment, from which an appeal would lie, and the record discloses that no appeal was taken. Under that state of facts we are simply confronted with this proposition: The probate court having found and adjudged that the notice of sale had been published for four weeks, and said judgment