that Will by a probate was obtained, and a conveyance and assurances made by him: Lord Hardwicke, C., directed an issue, with a special direction on the decretal order, to know on what foundation the jury went, if they found against the Will, whether upon forgery, or any particular defect in the execution; and his Lordship, after making some observations, with respect to the relief against the decree of the Court of Exchequer, proceeded to remark: "As to the sentence of the Prerogative Court, as at present advised, that will create no difficulty, if the Will is found forged; for then the plaintiff's consent appearing to have been obtained by the misrepresentation of that forged Will, that fraud infects the sentence; against which the relief must be here: This is not absolute, but only to show the tendency of my opinion upon the equity reserved after the trial; for I should not scruple decreeing the defendant, who obtained that probate, to stand as a trustee in respect of the probate; which would not overturn the jurisdiction of that Court." After a very long trial by a special jury, a verdict was brought in against the Will, with an indorsement that it was grounded on forgery, and not on any defect in the execution. Upon the equity reserved, Lord Hardwicke admitted that undoubtedly the jurisdiction of the Wills of personal estate belonged to the Ecclesiastical Court, according to which law it must be tried, notwithstanding the Will is found forged by a jury at law, upon the examination of witnesses; but there was a material difference between the Court of Chancery taking upon itself to set aside a Will of personal estate on account of fraud or forgery in obtaining or making that Will, and taking from the party the benefit of a Will established in the Ecclesiastical Court by his fraud, not upon the testator, but the person disinherited thereby: That fraud in obtaining a Will infected the whole; but the case of a Will, of which the probate was obtained by fraud on the next of kin, was of another consideration (x): That, in the case before him, the plaintiff

(x) The distinction here taken by Lord Hardwicke was recognised

by Lord Apsley in Meadows r. Duchess of Kingston, Ambl. 762.

had given a covenant to the defendant to do all acts which Powell should require of him; in consequence of which, a special proxy under hand and seal was obtained from him, confessing the allegations; upon which sentence was pronounced of probate to the defendants, the executors: The probate depended on that deed: and it was, therefore, proper for the Court to inquire, and set it aside for fraud, if proved; and that was the ground of jurisdiction in the Court of Chancery, distinct from the Will itself, and abstracted from the general jurisdiction of the Ecclesiastical Court to determine of a Will of personal estate: On the whole circumstances of the case, his Lordship decreed, that the defendants should consent, in the Ecclesiastical Court, the next term, to a revocation of the probate, and that, after such revocation, the defendants should have a fortnight's time to propound the paper writing in the Ecclesiastical Court; on failure of which, his Lordship said he would. compel the defendants to consent to the granting administration to the plaintiff: and his Lordship added, "I think I ought to go further; and although I shall not yet decree a trust, yet even now I shall be warranted to decree an account of the personal estate, to be paid into the Bank, for the benefit of the parties entitled, which for security was done in Powis v. Andrews; and the present case, from all the ill practice that has been, is stronger than that. This is the better method, to avoid any jealousy of infringing on the Ecclesiastical Court." It being insisted for the plaintiff, that the Court ought to direct no examination of the said paper writing, but grant a perpetual injunction, from the circumstances of its being produced and found with the forged Will, and it's reciting a forged deed; his Lordship thought this would be a very good defence in the Ecclesiastical Court, as they were circumstances of suspicion; but that it would be going too far to say, that, because of ill practice in one Will, he should have no right as to another.

The effect of this decision was considered in the modern

VOL. I.

I I

case of Gingell v. Horne (y). There, after a Will of personalty had been proved per testes in the Ecclesiastical Court, a bill was filed by the next of kin, alleging that the testator's signature to the Will was obtained when he was not of sound and disposing mind; that his medical attendants were not called as witnesses when the probate was obtained; and that the evidence of the testator's incompetency did not come to the knowledge of the plaintiffs until after the time allowed for appealing from the sentence of the Ecclesiastical Court had expired; and praying that the Will might be declared to have been fraudulently obtained, and that the residuary legatee might be declared a trustee for the plaintiffs: A demurrer to the bill was allowed by Sir L. Shadwell, V. C.: And his Honor said, he had long considered the law as settled, that there is no method of escaping from the effect of probate, unless in a case like Barnesley v. Powell: That in the present case no fraud was practised on the plaintiffs in obtaining probate; and this bill, therefore, did not afford any such materials for the interference of the Court as there were in Barnesley v. Powell, in which Lord Hardwicke made a decree which afforded an opportunity of having the matter reconsidered in the Ecclesiastical Court.

:

The subject has been since fully investigated, and all the authorities relating to it have been discussed, in the case of Allen v. Macpherson (2). There the testator had by his Will and subsequent codicils bequeathed considerable property to the plaintiff, and made also other bequests to other relatives He afterwards by a further codicil revoked these bequests, and in lieu of them made a small pecuniary provision for the plaintiff: The bill alleged that this codicil was obtained by false and fraudulent representations made by an illegitimate son of the testator, acting in confederacy with the defendant, his daughter and residuary legatee, as to the character and conduct of the plaintiff In the Ecclesiastical Court the plaintiff had unsuccessfully resisted (y) 9 Sim. 539. (z) 5 Beav. 469. 1 Phill. C. C. 133. 1 H. of L. 191.

the admission to probate of the revoking codicil, on the ground that it had been obtained by undue influence: And the bill further stated that the appellant was confined in that Court to grounds of objection which affected the codicil as an entire instrument, and was not permitted to go into the case stated in the bill or into any other case solely relating to the parts of the codicil which affected only the appellant: To this bill the defendant demurred: Lord Langdale, M. R., overruled the demurrer, being of opinion that, by analogy to former decisions, as the Will alleged that the revocation had been procured by the fraud of the defendant, the Court of Chancery had jurisdiction to deprive her of the benefit of it, and to declare her to be a trustee of that to which the law entitled her for the benefit of the person to whose prejudice the fraud was practised (a). But this decision was reversed by Lord Lyndhurst, C., on appeal; and his Lordship relied on the distinction taken by Lord Hardwicke (as above stated), in Barnesley v. Powell, and recognized by Lord Apsley in Meadows v. The Duchess of Kingston (b), between fraud on the testator and fraud upon the person disinherited thereby : His Lordship further relied on Kerrich v. Bransby (c), as a decision of the House of Lords establishing not merely that a Will cannot be set aside in Equity for fraud (d), but further, that the Court of Chancery has no jurisdiction to declare the fraudulent legatee a trustee for

(a) 5 Beav. 469.

(b) Ambl. 762. Ante, p. 480, note (x).

(c) 7 Bro. P. C. 437. Ante, p. 42, n. (m), p. 476, n. (d).

(d) But Lord Abinger, C. B., in his judgment in Middleton v. Sherburne, 4 Y. & Coll. Exch. C. 358, argued with much pains that in Kerrich v. Bransby, the bill was dismissed on the merits, and that the case is, therefore, no authority for the proposition that a Will cannot be set aside in equity for fraud.— That, however, (observed Lord

Lyndhurst, in Allen v. Macpherson, 1 Phill. C. C. 146), has not been the understanding of the profession, and Lord Hardwicke, who probably was acquainted with the history of the case, expressly states in Barnesley v. Powell, that it was decided on the question of jurisdiction. And Lord Eldon, in Ex parte Fearon, 5 Ves. 633, 647, observed that it was determined in Kerrich v. Bransby that the Court of Chancery could not take any cognizance of Wills of personal estate as to matter of fraud.

the party defrauded. And this decision was afterwards affirmed on appeal to the House of Lords; their Lordships holding that the Ecclesiastical Court had jurisdiction to refuse and ought to have refused probate of that part of the codicil which affected the appellant, because, giving credit to the facts stated by the bill and admitted by the demurrer, that part of the codicil was not the Will of the testator, having been obtained by a fraud practised on him; but that the proper course would have been to appeal to the Privy Council in order to set the matter right, and not to file a bill in Equity, which was, in effect, an attempt to review the decision of a Court of Probate by the Court of Chancery (e).

It may properly be remarked, in this place, that where a person has acted under a probate, and admitted facts material to its validity, a Court of Equity may interfere by injunction, and prevent such person from proceeding further to controvert the Will in the Ecclesiastical Court (ƒ).

Further, a Court of Equity, by reason of its jurisdiction as a Court of construction, may, under particular circumstances, so construe an instrument, of which probate has been obtained, as to render it ineffectual. Thus in Gawler v. Slanderwick (g), a paper was proved in the Spiritual Court as a codicil of the testator, which was signed by the

(e) 1 H. of L. 191. Lords Lyndhurst, Brougham, and Campbell were of opinion that the decree should be affirmed, dissentientibus Lords Cottenham, C., and Langdale, M. R. Lord Lyndhurst, in the course of delivering his opinion, observed as to the case mentioned by Gilbert, C. B., in Marriott v. Marriott, (ante, p. 478, n. r), of the drawer of the Will fraudulently inserting his own name instead of that of the legatee, that if probate were refused in such a case, on account of the fraud, the real legatee would lose his legacy. And his Lordship added, that he thought

it would be found, on examining the cases in which the House of Lords had declared a legatee or executor to be a trustee for other persons, that they have been either questions of construction, or cases in which the party had been named as trustee, or had engaged to take as such, or in which the Court of Probate could afford no adequate or proper remedy.

(ƒ) Sheffield v. Buckinghamshire, 1 Atk. 628. S. C. 3 Bro. P. C. 148. 2 Rop. Leg. 689, 3rd edition. Gascoyne v. Chandler, 3 Swanst. 418, note. (g) 2 Cox, 16.