delivered the opinion of the court:

This petition was filed by the executors and devisees of James Sanders, deceased, to sell the real estate, as it could not be divided without injury to the estate, and to distribute the proceeds, &c.

All the devisees are plaintiffs except three, and two of these three file their answers, making them cross-petitions, and charging that the paper exhibited by the plaintiffs as the will of James Sanders, deceased, is not his true last wall and testament — that he was not of disposing mind and memory, and that improper 'influence had been exercised over him.— By answers to these cross-petitions, an issue was formed as to the validity of the will, and a jury was impannelled by the court to try the issue, and they found against the will, and the court rendered a decree declaring that the instrument filed and exhibited as the will of James Sanders, deceased, was not his last will and testament. No further decree was rendered.

The only question discussed by the counsel, or necessary to be investigated and decided, is — Can the will be questioned and attacked by cross-petition in a suit brought in part to carry out its provisions, or can it be attacked in equity in any other way than by an original and direct proceeding for the purpose of invalidating it? These questions must be answered in the negative.

Whether, pi’evious to the adoption of the Code of Practice, a will could be questioned and sought to be set aside by a ci’oss-bill in a suit brought to execute its provisions in part or in whole, it is not important to inquire. But, we will remark, that it does not occur to us that there would have been any impropi’iety in such a px-oceeding, although we remember no *13example of the kind. It is certain that a will could not have been attacked collaterally under the old system of practice with any more propriety than it can be done under the pretent system. But, a proceeding to set aside a will by a cross-bill, or cross-petition, could hardly be said to be a collateral attack upon it, but rather as a direct proceeding for invalidating the will, though commenced not by original, but by cross-suit.

*13However, the only pleadings allowed by the Code are — the petition by the plaintiff, the demurrer or answer by the defendant, and the demurrer or reply by the plaintiff. The defendant may set forth in his answer as many grounds of defense, counter-claim, or set-off, as he shall have; but a cross-petition is not allowed or contemplated by the Code. That part of the answer in this case, which was intended as a cross-petition, cannot with propriety be denominated a defense to the action at all under the Code.— The action was brought for a sale of the land and slaves, and a distribution of the proceeds, under the allegation that the slaves and land could not be divided in kind, and for a correction of an alleged mistake in the will upon the subject of advancements, and for distribution of the proceeds of the sale, &c. The action was not brought to set up or establish the will, but for other purposes, under the assumption that the will was the true last will and testament of James Sanders. Now, an attack upon the validity of the will, by cross-petition, is not. a defense to the allegations of the petition, but a distinct proceeding to set aside the will, and this is not allowed or authorized by the Code.

If the complainants in the cross-petition desire to set aside the will, they must institute an original proceeding for that purpose, or appeal to the circuit from the opinion of the county court admitting the will to record; and if the ends of justice and equity require it, they might, by appropriate allegations, in an original petition, obtain an injunction to further *14proceedings upon the petition for sale of the land, slaves, &c., until the question of will or no will can be tried.

Being of opinion that the Code does not authorize or sanction a cross-petition, the judgment of the circuit court upon that proceeding in the present case must be reversed.

Wherefore, the judgment is reversed, and the cause remanded, that the judgment upon the cross-petition be set aside, and for further proceedings upon the original petition.