the substantial ground of the act or bequest.1 (a) The civil law seems to have proceeded upon the same ground. The Digest 2 says: Falsam causam legato non obesse, verius est; quia ratio legandi legato non cohæret. Sed plerumque doli exceptio locum habebit, si probetur, alias legaturus non fuisse.' The meaning of this passage is, that a false reason given for the legacy is not of itself sufficient to destroy it. But there must be an exception of any fraud (b) practised, from which it may be presumed that the person giving the legacy would not, if that fraud had been known to him, have given it. And the same reasoning applies to a case of clear mistake.

1 Kennell v. Abbott, 4 Ves. R. 802.

2 Dig. Lib. 35, tit. 1, 1. 72, § 6. See also Swinburne on Wills, Pt. 7, § 22, p. 557.

Kennell v. Abbott, 4 Ves. 808.

(a) See Wilkinson v. Joughin, 12 Jur. N. s. 330; In re Pitts's Will, 5 Jur. N. s. 1235.

means a plea of fraud; and the passage means that such a plea will be proper where the gift would not have (b) The term doli exceptio' merely been made had the truth been known.

VOL. I.-18

CHAPTER VI.

ACTUAL OR POSITIVE FRAUD.

184. LET us now pass to another great head of concurrent jurisdiction in equity, that of Fraud. And here it may be laid down as a general rule subject to few exceptions, that Courts of Equity exercise a general jurisdiction in cases of fraud, sometimes concurrent with and sometimes exclusive of other courts.1

1 Barker v. Ray, 2 Russ. R. 63; Post, §§ 238, 252, 264, 440. Mr. Fonblanque in his note (B. 1, ch. 2, § 3, note u) says: Whether Courts of Equity could interpose and relieve against fraud practised in the obtaining of a will, appears to have been formerly a point of considerable doubt. In some cases we find the Court of Chancery distinctly asserting its jurisdiction; as in Maundy v. Maundy, 1 Ch. Rep. 66; Well v. Thornagh, Pre. Ch. 123; Goss v. Tracy, 1 P. Wms. 287; 2 Vern. 700; in other cases disclaiming such jurisdiction, though the fraud was gross and palpable; as in Roberts v. Wynne, 1 Ch. Rep. 125; Archer v. Moss, 2 Vern. 8; Herbert v. Lownes, 1 Ch. Rep. 13; Thynn v. Thynn, 1 Vern. 296; Devenish v. Barnes, Pre. Cn. 3; Barnesly v. Powel, 1 Ves. 287; Marriott v. Marriott, Str. 666. That an action at law will lie upon a promise that if the devisor would not charge the land with a rent-charge, the devisee would pay a certain sum to the intended legatee of the rent. See Rockwood v. Rockwood, 1 Leon. 192; Cro. Eliz. 163. See also Dutton v. Poole, 1 Vent. 318, 332; Beringer v. Beringer, 16 June, 26 Car. II.; Chamberlain v. Chamberlain, 2 Freem. 34; Leicester v. Foxcroft, cited Gilb. Rep. 11; Reech v. Kenningall, 26 October, 1748. But since the cases of Kerrich v. Bransby, 3 Brown's P. C. 358, and Webb v. Cleverden, 2 Atk. 424, it appears to have been settled that a will cannot be set aside in equity for fraud and imposition, because a will of personal estate may be set aside for fraud in the Ecclesiastical Court and a will of real estate may be set aside at law; for in such cases, as the animus testandi is wanting, it cannot be considered as a will. Bennet v. Vade, 2 Atk. 324; Anon. 3 Atk. 17. Though equity will not set aside a will for fraud nor restrain the probate of it in the proper court, yet if the fraud be proved it will not assist the party practising it, but will leave him to make what advantage he can of it. Nelson v. Oldfield, 2 Vern. 76. But if the validity of the will has been already determined and acted upon, equity will restrain proceedings in the Prerogative Court to controvert its validity. Sheffield v. Duchess of Buckingham, 1 Atk. 628. Lord Hardwicke, having admitted that a Court of Equity cannot

It has been already stated that in a great variety of cases fraud is remediable, and effectually remediable, at law.1 (a) Nay,

46

set aside a will for fraud, observes, in the above case of Sheffield v. Duchess of Buckingham, that the admission of a fact by a party concerned, and who is most likely to know it, is stronger than if determined by a jury; and facts are as properly concluded by an admission as by a trial." That the party prejudiced by the fraud may file a bill for a discovery of all its circumstances is unquestionable. Supposing then the defendant to admit the fraud, if the admission is to have the effect ascribed to it by Lord Hardwicke, it still remains to be determined how a Court of Equity ought to proceed. If it could not relieve, it would follow, as a consequence, that so much of the bill as seeks relief would be demurrable; but the invariable practice in such cases is to seek relief, and the issue directed is to furnish the ground upon which the court is to proceed in giving such relief.' But the question whether a Court of Equity will interpose and grant relief in cases of wills obtained or suppressed by fraud has been much litigated since the note of Mr. Fonblanque was written, and it is now well settled that a Court of Equity will not entertain jurisdiction to set aside a will obtained by fraud, or establish a will suppressed by fraud, whatever relief it may otherwise grant under special circumstances. See Allen v. Macpherson, 5 Beav. R. 469; s. c. on appeal, 1 Phillips, Ch. R. 133. In this case, upon the appeal Lord Cottenham discussed the authorities at large and said, 'The testator in this case had bequeathed a considerable property to the plaintiff by his will and subsequent codicils. He afterwards by a further codicil (the ninth) revoked these bequests, and in lieu of them made a small pecuniary provision in his favor. It was alleged by the bill that this alteration was procured by false and fraudulent representations made by an illegitimate son of the testator, and by the defendant Susannah Evans, his daughter, as to the character and conduct of the plaintiff, Susannah Evans being the residuary legatee. To this bill the defendants demurred. The Master of the Rolls overruled the demurrer, and from this judgment the defendants have appealed. The question is one of considerable importance. The same objection of fraud, founded upon the same facts, was made in the Ecclesiastical Court upon the application for probate. It did not however prevail. This then is in substance an attempt to review the proceedings in that court; for a sufficient case of imposition and fraud practised on the testator would have been a ground for refusing the probate. There are undoubtedly cases where, fraud being proved, this court has declared the party committing the fraud a trustee for the person against whom the fraud was practised; but none of these cases appear to me to go so far as the present. The case of Seagrave v. Kirwan has no very close application to the question now before the court. The Chancellor of Ireland, Sir Anthony Hart, declared the executor a trustee as to the residue for the next of kin. But in that case the testator never intended that the executor should take any benefit under the will. The rule which then prevailed, that the executor

1 Ante, §§ 59, 60; 3 Black. Comm. 431; 1 Fonbl. Eq. B. 1, ch. 2, § 3, note (r); 4 Inst. 84; Bright v. Eynor, 1 Burr. R. 396; Jackson v. Burgott, 10 John. R. 457, 462.

(a) See editor's note to § 33, ante.

in certain cases, such as fraud in obtaining a will, whether of personal estate or real estate, the proper remedy is exclusively

was entitled to the residue unless otherwise disposed of, except where a legacy was bequeathed to him by the will, was a rule of interpretation or construction. The learned judge considered that it was the duty of the executor who prepared the will, and who was a gentleman of the bar, to have informed the testator that such was the rule. He was not allowed to profit from this omission, and was therefore decreed to be a trustee for the next of kin. The Ecclesiastical Court had no authority to order this. They had no power to do what the justice of the case required. So in Kennell v. Abbott (4 Ves. 802). There a fraud had been practised, and the question was one of intention. The testatrix intended the legacy for her husband. The legatee had fraudulently assumed that character. The Master of the Rolls, Sir Pepper Arden, came to the conclusion that the character he had so assumed was the only motive for the gift. The law therefore, he said, would not permit him to avail himself of the testatrix's bounty. In the case of Marriot v. Marriot, which is mentioned in Strange (p. 666), and also in Chief Baron Gilbert's Reports (p. 203; see p. 209), it does not appear what was the nature of the imputed fraud. The cause was compromised, and the judgment, according to the report in Gilbert, was written by the learned judge, but not delivered. He says that a Court of Equity may, according to the real intention of the testator, declare a trust upon a will, although it be not contained in the will itself, in these three cases. First, in the case of a notorious fraud upon a legatee; as if the drawer of a will should insert his own name instead of the name of the legatee, no doubt he would be a trustee for the real legatee. Secondly, where the words imply a trust for the relations, as in the case of a specific devise to the executors, and no disposition of the residue. Thirdly, in the case of a legatee promising the testator to stand as a trustee for another. And nobody, he adds, has thought that declaring a trust in these cases is an infringement upon the ecclesiastical jurisdiction. These are the only positions laid down in the intended judgment which are applicable to the present question. They do not admit of dispute, but are very distinguishable from the case now under consideration. It is sufficient to observe that in none of these instances

would the Ecclesiastical Court be competent to afford relief. The same remarks will apply to the case also of Kennell v. Abbott, which I have already mentioned. But in Plume v. Beale (1 P. Wms. 188), where a legacy was introduced by forgery, Lord Chancellor Cowper refused to interfere, saying it might have been proved in the Ecclesiastical Court with a particular reservation as to that legacy. There the interference of the Court of Equity was unnecessary. The question might have been settled by the Ecclesiastical Court. In the case of Barnesly v. Powel (1 Ves. sen., p. 284), Lord Hardwicke says that fraud in making or obtaining a will must be inquired into and determined by the Ecclesiastical Court, but that 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 this court. Fraud, he says, in obtaining the will infects the whole, but the case of a will in which the probate has been obtained by fraud upon the next of kin is of another consideration; and Lord Apsley, in the case of Meadows r. The Duchess of Kingston (Amb. 762), recognizes this distinction. But the case which has the closest resemblance to this is Kerrich v. Bransby, decided in

vested in other courts; in wills of personal estate, in the Ecclesiastical Courts, and in wills of real estate, in the Courts of

the House of Lords (7 Bro. P. C. 457). It was alleged in that case that the will had been obtained by fraud and imposition practised on the testator; and the chancellor, Lord Macclesfield, was of that opinion, and pronounced a decree the effect of which was to deprive the legatee of all benefit under it. It is true that the prayer of the bill was that the will might be cancelled; but the decree did not do more than direct the legatee to account for the testator's personal estate, and that what should appear to be in his hands should be paid over to the plaintiff, and that if necessary the plaintiff should be at liberty to use the legatee's name to get in the debts or other personal estate of the testator; in substance declaring him a trustee for the plaintiff. But this judgment was reversed on appeal in the House of Lords. It was suggested at the bar upon the argument in the present case that the decree might perhaps have been reversed on the merits. That however has not been the understanding of the profession, and Lord Hardwicke, who probably was acquainted with the history of the case, expressly states in Barnesly v. Powel that it was decided on the question of jurisdiction. Lord Eldon also, in Ex parte Fearon (5 Ves. 633; see p. 647), observes that it was determined in Kerrich v. Bransby that this court could not take any cognizance of wills of personal estate as to matters of fraud. I am of opinion therefore, as well on authority as on principle, that the demurrer was proper, and ought to have been sustained.' Again in Price v. Dewhurst, 4 Mylne & Craig, R. 76, 80, 81, Lord Cottenham said: The first question which occurs is, How can this court in administering a testator's property take any notice of a will of which no probate has been obtained from the Ecclesiastical Court of this country? This court knows nothing of any will of personalty except such as the Ecclesiastical Court has by the probate adjudged to be the last will.' The same question occurred before the Supreme Court of the U. S. in the case of Gaines and wife v. Chew and others, 2 Howard, S. Ct. R. 619, 645, 646. In that case Mr. Justice McLean, in delivering the opinion of the court, said: 'In cases of fraud, equity has a concurrent jurisdiction with a court of law, but in regard to a will charged to have been obtained through fraud, this rule does not hold. It may be difficult to assign any very satisfactory reason for this exception. That exclusive jurisdiction over the probate of wills is vested in another tribunal is the only one that can be given. By art. 1637 of the Civil Code it is declared that "no testament can have effect unless it has been presented to the judge," &c. And in Clappier et al v. Banks, 11 Louis. Rep. 593, it is held that a will alleged to be lost or destroyed, and which has never been proved, cannot be set up as evidence of title in an action of revendication. In Armstrong v. Administrators of Kosciusko, 12 Wheat. 169, this court held that an action for a legacy could not be sustained under a will which had not been proved in this country before a Court of Probate, though it may have been effective as a will in the foreign country where it was made. In Tarver v. Tarver et al., 9 Peters, 180, one of the objects of the bill being to set aside the probate of a will, the court said, "The bill cannot be sustained for the purpose of avoiding the probate. That should have been done, if at all, by an appeal from the Court of Probate, according to the provisions of the law of Alabama." The American decisions on this subject have followed the English authorities. And a deliberate consideration of the question leads