the appellant, by her deed from Haseltine, did not acquire the legal estate to the land in dispute.

The conclusion of the trial court, upon this proposition, in which it is stated that the legal estate was vested in Lizzie Kirchgraber, the appellant, was erroneous.

It is unnecessary to refer to any interest in the estate, which the husband may have held, upon the death of the wife by the curtesy; if there was any such estate, it was extinguished by his death in 1900.

This leads us to the only remaining proposition involved in this cause; that is, upon the record, as made by the probate court, was the sale made by the administrator of the estate of Hulda Jarrett, deceased, of the land in dispute a valid one, and did his deed under such sale convey to Lizzie Kirchgraber, the appellant in this cause, the legal title to the premises? A correct answer to this question must be the solution of this proposition. That the order of sale, and the sale made in obedience to it, was made upon the application of the appellant in this cause, under the provisions of section 150, supra, there can be no dispute. The entire record demonstrates that fact.

Section 150 provides: "If such executor or administrator do not make such application, any creditor or other person interested in the estate may make such application, giving twenty days' notice to the executor or administrator. On such application the court shall order publication and notice, as provided in preceding sections.”

It is obvious from that section that the authority 645 to make the application for the sale of land of a deceased person is limited to a "creditor or other person interested in the estate." It is equally clear that the terms "other person interested in the estate" contemplates persons who have an interest in the distribution of the estate, or who have a right to participate in such distribution, such as an heir, or one who is made a legatee by will, or the guardian or curator of one of the heirs of the estate, or other persons who may be entitled to a distributive share of the estate. That the appellant in this case had no such interest in the estate of Hulda Jarrett, deceased, as authorized her to make that application for the sale of the real estate, in our opinion, is too plain for discussion. Her purchase of the interest of the two children of the deceased in the land which descended to them falls far short of creating any interest in the estate, as contemplated by the section of the statute, upon which the proceedings to sell the land were predicated.

Upon the death of a party who dies intestate, his or her lands descend directly to the heirs, and, technically, are no part of the estate which goes into the hands of the administrator for distribution, and in the administration of the estate the administrator has nothing to do with such lands, except as it may be subjected to his control under the provisions of law, which subject lands to the payment of the debts of the deceased.

If the appellant does not fall within the terms "other persons interested in the estate," then it follows that the order of sale by the probate court was without authority and is void. But it is insisted by appellant that the order of sale, and the sale made in obedience to it, and its approval by the court, was a final judgment, and cannot be attacked in this collateral proceeding. This is true where the record upon its face shows that the court had jurisdiction.

"Jurisdiction may be defined to be the right to 646 adjudicate concerning the subject matter in a given case. To constitute this there are three essentials: 1. The court must have cognizance of the class of cases to which the one to be adjudged belongs; 2. The proper parties must be present; and 3. The point decided must be, in substance and effect, within the issue": Munday v. Vail, 34 N. J. L. 422.

It was legitimate and competent for the plaintiffs in this case to introduce the entire record of the probate court in the proceedings to sell this land. An examination of that record convinces us that one of the essentials necessary to confer jurisdiction upon that court was entirely absent. In other words, the proper parties were not before the court, and this is shown upon the face of the record in this, that the appellant, who instituted the proceeding for the sale of the land, was neither a creditor nor was she interested in the estate, within the provisions of the statute.

That want of jurisdiction may be ascertained by the consideration of the whole record was clearly settled by this court in Hutchinson v. Shelley, 133 Mo. 400, 34 S. W. 838. In the discussion in that case of the same contention that is now urged in the case at bar, the court said: "But it is urged by counsel for defendant that the judgments and orders of probate courts in the administration of estates are accorded the same presumptions in favor of their regularity as are indulged in favor of courts of general jurisdiction, and they are correct in this assumption: Camden v. Plain, 91 Mo. 117, 4 S. W. 86; Price v. Springfield Real Estate Assn., 101 Mo. 107, 20 Am. St. Rep.

595, 14 S. W. 57; Rowden v. Brown, 91 Mo. 429, 4 S. W. 129, and cases cited. But the judgments of the circuit courts and other courts of general jurisdiction may be overthrown by other portions of their records of equal dignity and importing the same verity which demonstrates that their recitals in their judg ments are untrue, and a party attacking a judgment of such a court collaterally may introduce 647 the whole record in the given cause to show that the court had no jurisdiction, either over the person or subject matter, and when it so appears its judgment is void: Cloud v. Pierce City, 86 Mo. 357; Adams v. Cowles, 95 Mo. 501, 6 Am. St. Rep. 74, 8 S. W. 711." It appearing upon the face of the record that the probate court did not have the authority to entertain the proceeding instituted by appellant for the sale of this land nor to make the order of sale, it follows that the sale made in obedience to such order, as well as the deed executed to defendant in pursuance to such sale, were void and conveyed no title to the land in dispute.

It is insisted by appellant that the trial court was not authorized in this proceeding to render the decree and judgment, for the reason that upon the findings of the court it had no power under the statute upon which this suit is predicated to devest title. In other words, it is contended that the power of the court is limited by the provisions of section 650 of the Revised Statutes of 1899, to the ascertainment and defining of the title of the respective parties to the action. The trial court may have proceeded upon the theory, as indicated in its conclusion, that the legal estate was vested in the appellant by the deed of Sandy Jarrett in 1893, after the death of his wife, and that the decree should devest appellant of such legal estate and vest it in plaintiffs. Such, however, was not the effect of the decree and judgment, for, as is herein determined, appellant did not acquire any legal estate by virtue of said deed for the reason that at the time of the execution of the deed the marriage relation no longer existed, after the death of the wife, to whom the husband had conveyed this land. The husband was, by operation of law, devested of the legal estate, which he held in trust by virtue of the existence of the marriage relation, and the same was vested in the children of his deceased wife, Hulda Jarrett.

We are dealing, upon this appeal, with the result 648 of the decree and judgment, and not any particular theory of the trial judge in reaching such result.

This renders unnecessary any discussion of the scope of the section of the statute upon which this action is based, or the extent of the relief which may be afforded by its provisions. The judgment and decree in this cause were right, under the law applicable to the facts disclosed by the record, and should be affirmed, and it is so ordered.

All concur.

A Conveyance from a Husband to his wife gives her an equitable estate, according to Ogden v. Ogden, 60 Ark. 70, 46 Am. St. Rep. 151, while the legal title remains in him as her trustee. See, too, Wallace v. Pereles, 109 Wis. 316, 83 Am. St. Rep. 898; Turner v. Shaw, 96 Mo. 22, 9 Am. St. Rep. 319.

The Orders and Judgments of Probate Courts are generally regarded as entitled to the same favorable presumptions and immunity from collateral attack as are those of courts of general jurisdiction: Stucky v. Watkins, 112 Ga. 268, 81 Am. St. Rep. 47, and cases cited in the cross-reference note thereto. But a judgment of any court, rendered without jurisdiction, is void and vulnerable to collateral attack: Thornily v. Prentice, 121 Iowa, 89, 100 Am. St. Rep. 317; Ewing v. Mallison, 65 Kan. 484, 93 Am. St. Rep. 299; In re Christensen, 17 Utah, 412, 70 Am. St. Rep. 794.

CASES

IN THE

COURT OF ERRORS AND APPEALS

OF

NEW JERSEY.

KNICKERBOCKER TRUST COMPANY v. PENN CORDAGE COMPANY.

[66 N. J. Eq. 305, 58 Atl. 409.]

FIXTURES What are.-When Chattels have been placed in and annexed to a building by their owner as a part of the means by which to carry out the purposes for which it was erected, or to which it has been adapted, with the intention of permanently increasing its value for the use to which it is devoted, they become, as between the owner and his mortgagee, fixtures, and as much a part of the realty as the building itself, notwithstanding they may be removed from the building without injury to them or it and advantageously used elsewhere, and notwithstanding the building may readily be devoted thereafter to a use entirely different from that contemplated when the annexation was made. (p. 643.)

RECORDS. A Mortgage Covering Both Real and Personal Property must, to make it a valid lien as against creditors under the New Jersey statutes, be recorded not only among the records of real estate mortgages, but also in one of the books provided for the recording of chattel mortgages, except where the mortgagor is a railroad company. (p. 645.)

RECORDS.-Actual Transcription of a Chattel Mortgage in the records is necessary, under the New Jersey statutes, to make it valid as against creditors. (p. 645.)

RECORDS-When Registration Complete.-As soon as a chattel mortgage is deposited for record, it must be presumed to have been transcribed forthwith, and that presumption continues so long as the instrument remains in the clerk's office and until actually transcribed, after which it becomes conclusive; but when the mortgage is taken away from the office without having been recorded, the presumption ceases to exist, and the instrument stands in the same condition, so far as creditors are concerned, as if it had never been lodged for record. (p. 646.)

John B. Humphreys and Davies, Stone & Auerbach, for the appellant.