The opinion
Fox, Judge,
concurring:
On the assumption that the probate of the 1927 will was not procured by fraud, I concur, with reservations, in the opinion prepared by Judge Haymond. I agree that the proceeding provided for by Code, 41-5-11, goes to the juris *248 diction of the circuit court, as well as the remedy, and that if the suit in equity therein provided for be not instituted within two years after a will is probated in an ex parte proceeding in the county court, and there is no appeal therefrom, the probate becomes final as to any matter affecting the execution of the will, or the probate thereof, except clearly established fraud perpetrated on the county court in securing its probate. In other words, the county court may have committed error in admitting the will to probate, but in the absence of fraud in securing such probate, on the part of some interested party, the probate becomes final and binding at the end of two years thereafter. I am not willing, however, that this Court shall hold, either in direct terms or by implication, that a will, the probate of which has been secured by fraud, cannot be attacked within a reasonable time after the fraud is discovered. No judgment or decree of any court procured by fraud is free from such attack, and I do not believe the probate of a will stands on a different footing. I am not prepared to say that the opinion filed is in conflict with this view, but the disapproval of the language used by Judge Kenna in Cowan v. Cowan, 133 W. Va. 115 , 54 S. E. 2d 34 , might be construed to indicate that the Court’s view is that a probate not attacked within two years would stand as final even though it had been procured by fraud.
If the plaintiffs in this proceeding are able to sustain the allegations of their bill that the defendants having in their possession a will, dated 1939, deliberately filed for probate a will dated in 1927, it seems to me that this comes close, if it does not amount to, a fraud upon the County Court of Grant County. However this may be, the plaintiffs in the case at bar are proceeding not only to set aside the probate of the 1927 will, but to establish and probate a later will. I do not think this procedure can be followed in equity. In the situation here existing, the 1939 will must first be established, and this, as indicated in the opinion, can be done by suit in equity. If the will be so established, either by its production, or by a clear showing of its contents, then it must be presented to the county *249 court for probate, inasmuch as the county court has exclusive jurisdiction under our Constitution in the matter of the probate of wills. After its probate, it becomes subject to appeal or suit in equity as the statute provides. The opinion filed, by way of dicta, points out the procedure which may be followed, and for that reason I waive any doubt I may have as to whether fraud was practiced on the County Court of Grant County in the probate of the 1927 will. Of course, if the 1939 will be established and admitted to probate, then so far as it is in conflict with the 1927 will, the latest will in point of time would control the division and distribution of the estate of the testator. See In re Winzenrith’s Will, 133 W. Va. 267 , 55 S. E. 2d 897 .