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England. As late as the year 1857 a difference existed there, explainable on grounds of history, between the effect of the probate of a will of personalty and the probate of a will of realty. The Ecclesiastical Court, to which down to that time the probate of wills had been committed, entertained exclusive jurisdiction of wills of personalty, so far as the question of the validity of a testament was concerned, which would include, generally speaking, questions of fraud upon the testator; while in regard to the validity of wills of realty that court had no determining power. This belonged entirely to the common law courts; the probate of a will devising real estate was not even evidence of the execution of the will, so far as such estate was concerned.

This was all changed in 1857. The Court of Probate (and Matrimonial Causes) was then created, by which the same effect was given to the act of probate in regard to realty as it had before in regard to personalty. In the year 1875, by the Judicature Act, this court too was fused into the one High Court of Justice.

The state of the law upon this subject of probate is very much mixed in the United States. The old distinction, derived from the Ecclesiastical Court of England, between the effect of the probate of personalty and of realty has from the first obtained, and it is believed still obtains, in many states of the Union; while in many other states the distinction, so far as it ever obtained, was long ago removed by legislation.2

But whether the distinction in question prevails in a given state or not, the Court of Probate, called by this or by whatever name, has no jurisdiction over rights of property under the will, except in so far as the decision in probate upon the validity of the will is concerned. The question of fraud upon the testator is a question solely or not for the Probate Court,

120 & 21 Vict. c. 77, §§ 61, 62. 2 See upon the whole subject Perkins's note to 1 Jarman, Wills, 31, 5th

Am. ed., printed as a chapter in 4th
Am. ed.

to be determined in accordance with the existence or not of the distinction above mentioned; but questions of fraud between the beneficiaries, indeed all questions of fraud arising after the probate, are for the courts of law or of equity, or for the single court of general jurisdiction where law and equity have been fused. The jurisdiction of the Court of Probate begins and ends with the probate of the will; questions of fraud upon the testator, or in the execution of the will, must be raised during the pendency of probate proceedings.

After probate then no other court can declare that the will was obtained or executed by fraud. Equity has no power to set aside, or indeed to restrain, the probate of a will. On the other hand if fraud be proved, it will not assist the party practising it, but will leave him to take such advantage of it otherwise as he can.2 But further, equity may, according to the real intention of the testator, declare a trust upon a will, though it be not contained in the will itself, in at least three cases: first, in the case of a notorious fraud upon a legatee, as if the draftsman of the will should insert his own name instead of that of the legatee; secondly, where the words imply a trust for the relatives, as in the case of a specific devise to the executors without a disposition of the residue; thirdly, in the case of a legatee promising the testator to stand as a trustee for another.3

Indeed Lord Hardwicke has said that while fraud in making or obtaining a will must be inquired into and determined by the Ecclesiastical Court, fraud in procuring a will to be established in that court, fraud not upon the testator, but upon the person disinherited thereby, might be the subject of inquiry in equity. And the same distinction has been recognized by

1 Broderick's Will, 21 Wall. 503; Ellis v. Davis, 109 U. S. 485, 494; Wolcott v. Wolcott, 140 Mass. 194; Trexlor v. Miller, 6 Ired. Eq. 248; Allen v. McPherson, 1 H. L. Cas. 191; Meluish v. Milton, 3 Ch. D. 27.

2 Fonblanque, Equity, Bk. 1, c. 2, § 3, note u.

8 Marriot v. Marriot, Gilb. 203, 209; Allen v. McPherson, 5 Beav. 469; s. c. 1 Phill. 133; 1 H. L. Cas. 191.

Barnesley v. Powell, 1 Ves. 284.

other judges.1 So where the fraud does not go to the validity of the whole will, but only to that of some particular clause, or where the fraud consists in unduly obtaining the consent of the next of kin to the probate, courts of equity will interpose to declare the executor a trustee for the next of kin.2 And it has been held that a will which has been fraudulently destroyed or suppressed may be set up in equity. Beyond cases of this kind, over which the Court of Probate itself could afford no suitable relief, the jurisdiction of that court is in proper cases exclusive, and its decision beyond review.

It will be seen that it is no paradox to say that while a particular court may have exclusive jurisdiction of certain questions touching fraud, after that jurisdiction has been exercised other courts may have jurisdiction of rights growing out of the decision of that court; indeed in a collateral way invading its exclusive domain. The rule is not at all peculiar to the judgments or decrees of the Court of Probate, but is general. Thus an action for deceit in the sale of a patent is maintainable in a state court, though the case may involve, collaterally, the construction and validity of the letters patent, the validity of which, directly considered, i. e. with reference to the jurisdiction to set the same aside, is exclusively within the cognizance of the United States courts.

The boundary line of the jurisdiction of courts of equity in respect of fraud, generally, has been a subject of much perplexity. Courts of law have unquestioned jurisdiction of actions for damages, whether ex delicto or ex contractu; have courts of equity also jurisdiction? Fraud, it is laid down, is an original head of equity; and hence it has been declared

1 Meadows v. Duchess of Kingston, Amb. 762; Kennell v. Abbott, 4 Ves. 802. See Allen v. McPherson, ut supra. 21 Story, Equity, § 440.

390.

David v. Park, 103 Mass. 501. Another example, in regard to bankruptcy, may be seen in Hanson v. Herrick, 100 Mass. 323. See also Nash v.

8 Buchanan v. Matlock, 8 Humph. Lull, 102 Mass. 60.

that equity has jurisdiction of false representations.1 Indeed in that general form of statement the proposition would be admitted everywhere. But has equity jurisdiction of false representations simpliciter, either for damages, or for restraining an action at law upon a contract obtained by such act, or for cancelling or setting aside a writing so obtained?

Some judges appear to have been willing to answer the first, and therefore (it would seem) a fortiori the second and third, of these questions in the affirmative.2 The more general and probably the better answer however to the first question is in the negative. A more serious difficulty arises in regard to the second and third questions, which may be treated as one for the present purpose; and there is considerable diversity of judicial opinion upon the subject. Thus in Massachusetts it is virtually declared that there is a 'plain, adequate, and complete' remedy at law in such cases, in the defence of fraud, and that that is all that can be required. But it is also said further by the same court that the remedy at law, to exclude the courts of equity, ought to be as practical and efficient' as the remedy in equity; and it may well be contended that defence is not as efficient as cancellation or injunction.

But the courts which declare that the remedy at law ought to be as practical and efficient' as in equity, to cut off equity jurisdiction, are not agreed in the application of the rule. The Supreme Court of the United States, the very court which has most frequently stated the rule, has itself refused to order the cancellation of a policy of insurance obtained by fraudulent representations; 5 while the Supreme Court of Massachusetts, which has generally taken a more limited view of the extent

1 Evans v. Bicknell, 6 Ves. 182; Bacon v. Bronson, 7 Johns. Ch. 194, 201; Hill v. Lane, L. R. 11 Eq. 215, 220; Ramshire v. Bolton, L. R. 8 Eq. 294.

2 See Hill v. Lane, and Ramshire v. Bolton, supra; also 1 Story, Equity, p. 30, note, 13th ed.

3 See the note just cited.

4 Holden v. Hoyt, 134 Mass. 181, 185; Oelrichs v. Spain, 15 Wall. 211, 228; Boyce v. Grundy, 3 Peters, 210, 215; note to Story, supra.

5 Insurance Co. v. Bailey, 13 Wall. 616.

The

of its jurisdiction in equity, has done the contrary. latter appears to be the better course, and not only in such cases, but in all others of the kind where the invalidity of the instrument is not apparent on its face, and where further there is danger that the evidence to support the defence to it at law may be lost by the delay of the opposite party to sue upon it, as in a striking case referred to in a preceding chapter, or where for any reason the instrument may be put to a wrongful use. Thus in a case just cited 5 it appeared that a partner had fraudulently given the firm note to A. The firm is dissolved and a receiver appointed. After maturity of the note the injured partner brings suit in equity against A, who still holds the note, to have the same given up for cancellation, and succeeds.

The rule of jurisdiction ought to apply to the case of conveyances made or obtained through fraud; but here too the decisions of the courts are out of harmony. Indeed the same court is sometimes apparently out of harmony with itself. Thus in Massachusetts, where the case just stated was decided, and where an insurance policy has been cancelled for fraud, it has been held that if the aggrieved party to a conveyance of land, obtained by the grantee through fraudulent representations or other fraud, is in a position to maintain an action at

1 Commercial Ins. Co. v. McLoon, 14 Allen, 351, approved in Fuller v. Percival, 126 Mass. 381. See also Smith v. Smith, 30 N. J. Eq. 564; Strafford v. Welch, 59 N. H. 46; Huston v. Roosa, 43 Ind. 517; Huston v. Schindler, 46 Ind. 38; Hardy v. Brier, 91 Ind. 91. All these cases but the first were cases of promissory notes, ordered to be cancelled for fraud or forgery.

2 Anthony v. Valentine, 130 Mass. 119; Fuller v. Percival, 126 Mass. 381; Commercial Ins. Co. v. McLoon, 14 Allen, 351; Martin v. Graves, 5 Allen,

601; Peirsoll v. Elliott, 6 Peters, 95; Hamilton v. Cummings, 1 Johns. Ch. 517. The case may therefore be compared to a bill to perpetuate testimony, which it much resembles. See Langdell, Equity Pl., p. 217, 2d ed.

8 Ante, pp. 16, 17, note.

4 Glastenbury v. McDonald, 44 Vt. 450; Bank of Bellows Falls v. Rutland R. Co., 28 Vt. 470; Baldwin v. Fagan, 83 Ind. 447.

5 Fuller v. Percival.

6 Commercial Ins. Co. v. McLoon, supra.

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