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that there shall be no other or further liability | The remarks of Mr. Justice Woodward, in to taxation. A State cannot strip itself of this Erie Ry. Co. v. Com., 66 Pa., 84, give a full most essential power by doubtful words. It explanation of the meaning of the language cannot, by ambiguous language, be deprived employed in that case. of this highest attribute of sovereignty. This principle is distinctly laid down in each of the cases referred to. It has never been departed Tested by this rule, the contention of the ap-dividends at a fixed rate was a mere designapellant must fail.

from.

On the occasion of the first Act referred to, to wit: in 1841, by which the Erie Railroad Company was permitted to take lands and lay its tracks and run its cars through the County of Susquehanna, nothing was said in the Act upon the subject of taxation. The value created or transferred to that county remained there like any other property of a corporation and, like all other property, subject to the operation of the laws of the State.

The Act of 1846, authorizing the building of the road through the County of Pike, contained two provisions in reference to taxation. By section 5 it was enacted that, after the road should be completed through the Counties of Pike and Susquehanna, an accurate account of the cost of that portion of the road should be filed in the office of the Auditor-General, and that after the road should be completed to Dun- | kirk, or extended by any other improvement to Lake Erie, the Company should annually pay into the Treasury the sum of $10,000.

In Easton Bk. v. Com., 10 Pa., 451, cited and approved in 18 Wall., 227, 21 L. ed., 895, it was held that the designation in the charter of the bank of the payment of taxes on its

tion of a tax then to be paid, and did not affect the power to impose other or greater taxes. The decisions of the State Courts of Pennsylvania are quite in harmony with our own on this subject.

None of the objections are well taken, and the judgment must be affirmed.

JOHN KIELEY and Mary Kieley, His Wife, George Wilson and Ann Wilson, His Wife, and Ellen Lynch, Appts.,

บ.

JOHN A. McGLYNN et al.

(See S. C., "Case of Broderick's Will," 21 Wall., 503-520.)

Equity jurisdiction over will-trust in will— jurisdiction of Court of Probate-devise of real estate-parties in laches-ignorance of fraud-excuse of equitable jurisdiction of Circuit Courts.

*1. A court of equity has not jurisdiction to the ground of fraud, mistake or forgery, this being avoid a will or to set aside the probate thereof, on within the exclusive jurisdiction of the Courts of Probate.

2. Nor will a court of equity give relief by charg in favor of a third person alleged to be defrauded by the forged or fraudulent will, where the Court of Probate could afford relief by refusing probate of the will in whole or in part.

3. The same rule applies to devises of real estate, of which the courts of law have exclusive jurisdiction, except in those States in which they are subjected to probate jurisdiction.

The 6th section provided that the stock of the Company, to an amount equal to the cost of the construction of that part of their road situate in Pennsylvania, "Shall be subject to taxation by this Commonwealth in the same manner and at the same rate as other similar property is or may be subject; and the Coming the executor of a will or a legatee with a trust pany shall annually make a statement of its affairs and of the business done upon said road during the previous year; said statement to contain a full and accurate account of the number of passengers, amount and weight of produce, merchandise, lumber, coal and minerals transferred on said road east of Dunkirk and west of Piermont." We find in these enactments no intimation of an intention to limit or to surrender the taxing power of the State. Two subjects of taxation are specified, and reports and details are required, from which it may be inferred that the Legislature looked to other taxation thereafter. They taxed as far as was then thought proper, leaving the future to provide for the future. There is no suggestion of a release of any power or surrender of any authority possessed by the State. None of the cases decided by this court would justify a decision that, by the language we are considering, the general power of taxation was agreed to be surrendered by the State.

4. It seems that where the Courts of Probate have not jurisdiction, or where the period for its further exercise has expired, and no laches are attributable to the injured party, courts of equity will, without disturbing the operation of the will, interpose to give relief to parties injured by fraudulent or forged wills, against those who are in possession of the decedent's estate, or its proceeds mala fides, or without consideration.

5. But such relief will not be granted to parties testator's death they made no effort to obtain rewho are in laches, as where from ignorance of the lief until eight or nine years after the probate of his will.

6. Ignorance of a fraud committed, which is the ordinary excuse for delay, does not apply in such a case, especially when it is alleged that the circumstances of the fraud were publicly and generally known at the domicil of the testator shortly after

his death.

7. Whilst alterations in the jurisdiction of the state courts cannot affect the equitable jurisdiction of the Circuit Courts of the United States, so long as the equitable rights themselves remain, yet, an enlargement of equitable rights may be administered by the Circuit Courts as well as by the courts of the State.

Nor do we find in Ry. Co. v. Sabin, 26 Pa., 244, cited by the appellant, anything in hostility to this construction. It was there held merely, as the State had imposed a tax upon the stock of the Company to the extent of the cost of construction in that State, that implied 500*] an exemption *from the ordinary taxation for State and county purposes. It was said that to hold otherwise would be to sub- Argued Jan. 15, 18, 1875. ject the same property to double taxation, which it cannot be supposed was intended.

[No. 141.]

1875.

Decided Feb. 15,

*Headnotes by Mr. Justice BRADLEY.

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paper; and their testimony was so taken and returned to the effect and purport that the name of the said David C. Broderick signed to said in

Statement of the case by the court. This is a suit in equity, brought by the al-strument, was the genuine signature of the said leged heirs at law of David C. Broderick, late United States Senator from California, to set aside the probate of his will and have the same declared a forgery, and to recover the said Broderick's estate, much of which consisted of lands now comprised in the thickly settled portions of the City of San Francisco. The complainants are John Kieley and Mary, his wife, George Wilson and Ann, his wife, and Een Lynch, all residents of Sydney, in New South Wales, and subjects of Great Britain and Ireland. They allege that Mary Kieley, Ann Wilson, and Ellen Lynch, were, at the death of Broderick, his next of kin and only heirs at law, being daughters of Catharine Droderick, sister of Thomas Broderick, the father of the said David.

505*] *There are several hundred defendants who are in possession and claim to be owners of the property in question. John A. McGlynn, one of the executors who propounded the will and procured its probate, is also one of the

defendants.

The bill was filed on the 16th of December, 1869, and states that David C. Broderick died on the 16th of September, 1859, intestate, being at the time a citizen of the United States and a resident of San Francisco in California, seised and possessed of real and personal property in said State. Then, after stating the relationship and status of the complainants, the bill proceeds to allege that at the time of his death, Broderick was seised of the real estate set out in the schedule annexed to the bill, and was possessed of personal property to the amount of $20,500, also set forth in the schedule.

It then alleges that on the 20th day of February, 1860, the defendant, John A. McGlynn, on behalf of himself and one Andrew J. Butler, presented to the Probate Court of San Francisco a certain paper writing (a copy of which is annexed) which they falsely pretended was the last will and testament of said David C. Broderick, in which said McGlynn, Butler and one George Wilkes were named as executors, and at the same time presented their petition in writing, whereby they prayed the court to admit the said will to probate and issue to them letters testamentary, knowing at the time that said paper was a forgery. And the bill charges the fact to be that it was a forgery and not Broderick's will. That it was forged about the first of January, 1860, after his death, for the purpose of defrauding his legal heirs, and that it was written by one Alfred A. Phillips, and that the name of David C. Broderick was signed thereto by one Moses E. Flanagan. The bill then proceeds to state as follows:

"That the said Butler, well knowing that the said paper was a forgery, caused it to be presented as aforesaid as the genuine, true and valid will of the said David C. Broderick, and caused a commission to issue under the seal of the said Probate Court, to a Commissioner of the State of California residing in New York 506*] City, *to take the testimony, reduce to writing and return it to the said Probate Court, of John J. Hoff and Alfred A. Phillips, whose names appear as subscribing witnesses to said

David C. Broderick, and that he did sign, seal and publish and declare the said instrument to be his last will and testament, in the presence of the said witnesses; and that they did sign the same as witnesses, at his request, in his presence Butler did also procure and present to said court and in the presence of each other; and the said the testimony of certain experts in handwriting, who testified to said court that in their opinion the name of David C. Broderick, subscribed to the said paper, was in the genuine handwriting of the said David C. Broderick; he, the said Butler, well knowing that the same was not the genuine handwriting of said David C. Broderick, and the same was not in truth and fact the genuine handwriting of said Broderick; and by means of such false testimony (your orators not having any notice in fact of said proceedings and no one appearing in their behalf) they did obtain the order and judgment of the said court, admitting the said will to probate as the genuine last will and testament of the said David C. Broderick, and granting letters testamentary to Andrew I. Butler (now deceased) and John A. McGlynn, as executors of said last will and testament, and they proceeded to act as such executors, allowed and procured to be approved by the probate judge, claims against the said estate to the amount of $80,000.

"And afterward the said Butler and McGlynn caused application to be made to said Probate Court for, and obtained an order of sale of the estate of the said Broderick, deceased, under which they sold the whole of the said estate. That at the time of said sale, which took place in the City and County of San Francisco, it was a matter of public and general notoriety, that the said pretended last will and testament of said David C. Broderick, under and by virtue and said property sold, was not the will of whereof all said probate proceedings were taken said Broderick, but was a forged and simulated paper, and all of those who purchased at the said sale, and the defendants, and those through whom they deraign title subsequent to said sale, purchased and acquired whatever interest they have or had, with full notice of the frauds hereinbefore alleged."

*It appears, by a subsequent state- [*507 ment, that the will was admitted to probate on the 8th of October, 1860, and that the sale referred to took place November 7, 1861.

had no knowledge or information of Broderick's The bill then alleges that the complainants death, nor of the forgery of the will, nor of its presentation for probate, nor of the probate or order of sale, nor of any of the proceedings, until the last day of December, 1866, within three years of filing the bill; and that since that time they have been diligently endeavoring to discover the facts and the evidence relating

thereto.

The bill charges that the defendants claimed to own or are in possession of some portion of Broderick's estate, deriving their only title or claim thereto by or under the probate sales or conveyances as made by said pretended executors by virtue thereof; that Butler is dead, and that Wilkes no longer has any interest

The bill then prays an answer to several specific interrogatories, as, namely: whether the several defendants do not now or have not been informed, that the probate paper was a forged instrument; whether it was not in fact forged, and not the will of Broderick; whether it was not fabricated after his death, as stated in the bill; whether Butler did not cause it to be propounded for probate, knowing it to be a forgery; whether he did not procure the testimony, and probate and sell the property, by virtue of orders of said Probate Court as stated; and that McGlynn and others who took part in the probate sale of the property, may set forth the details thereof, the time when sold, the amount received and the disposition of the proceeds.

The bill prays that the will may be declared a forgery; that the probate and all subsequent proceedings may be set aside and annulled, including the decrees of probate, sale, etc., or that the defendants, purchasers of lands and lots under the said orders of sale, or deraigning title therefrom, may be charged as trustees for the complainants, and may be compelled to convey 508*] to them, or that a commissioner *be appointed to make such conveyance and for general relief.

By the will in question, a copy of which is annexed to the bill, the testator, after payment of his debts, gives to his friend, John A. MeGlynn, $10,000, and all the residue of his estate to George Wilkes, of New York, and makes Wilkes, McGlynn and Butler executors. It purports to be dated at New York, January 4, 1859. Many of the defendants answered the bill, denying all knowledge or belief of any fraud or forgery in the will, and claiming to be bona fide purchasers without any notice of any such fraud or forgery. Many other defendants demurred to the bill.

In August, 1871, an amended bill was filed, whereby the complainants reiterate with much particularity the facts that they never resided in California or the United States, and never heard, or had any opportunity of hearing, of Broderick's death or the event connected with the probate of the will, until more than eight years after its being filed for probate, being illiterate and living in a remote and secluded region in Australia, and stating other facts of the same general character to account for their not having sooner taken any proceedings to assert their rights.

Demurrers were also filed to the bill as

amended, and upon the argument of these demurrers the bill was dismissed by the circuit court. From that decree the present appeal was taken.

The grounds relied on by the defendants on the demurrer and by the appellees here are:

1. That a court of equity has no jurisdiction of the subject-matter of this suit, the same being vested exclusively in the Probate Court of the City and County of San Francisco.

2. That the action is barred by several Statutes of Limitation of the State of California.

3. That the defendants were purchasers at a judicial sale made under the orders of a court of competent jurisdiction, never reversed or set aside, and not impeached by any bill.

509*] *4. That the complainants are nonresident foreigners, incapable of taking or holding property in California.

Messrs. Stephen H. Phillips, M. G. Cobb, J. N. McCorkle, S. W. Johnson and Isaiah T. Williams, for appellants:

The probate of a will obtained by fraud, will, in England, be relieved against in chancery. Anonymous, 3 Atk., 17; Herbert v. Lawns, 1 Ch. Rep., 23; Thynn v. Thynn, 1 Vern., 296; Welby v. Thornagh, Prec. in Ch., 123; Goss v. Tracy, 1 P. Wms., 287; Gosse v. Tracy, 2 Vern., 700; Dow. of Annandale v. Harris, 1 Bro. P. C., 250; Hampden v. Hampden, 3 Bro. P. C., 550; Middleton v. Sherburne, 4 Younge & C., 358, where it is said that "The cases of Kerrich v. Bransby, 7_Bro. P. C., 437, and Andrews v. Powys, 2 Bro. P. C., 504, are no authorities for the proposition that a court of equity has no jurisdiction to try the validity of a will of real or personal estate."

Courts of equity in this country do not appear to have hesitated to interfere, in cases of fraud, with decrees and proceedings in surrogates' courts, where such a question has been presented.

Pratt v. Northam, 5 Mason, 95; Simms v. Slacum, 3 Cranch, 307; Ammidon v. Smith, 1 Wheat., 447; Gould v. Gould, 3 Story, 536; Gaines v. Chew, 2 How., 619; Payne v. Hook, 7 Wall., 425, 19 L. ed. 260.

Even in case where an issue devisavit vel non, is sent to a court of law for trial, equity takes jurisaction and retains the case to grant relief, according to the event of the issue. Story, Eq. Jur., 440, sec. 184, note 1.

It seems that the only reason why any doubt ever existed as to whether courts of equity could

interpose and relieve against fraud, practiced in obtaining a will or procuring the probate of a will, is that 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, for the same reason, in a court of law.

Note 1 to 184, Story, Eq. Jur.; Gainer v. Chew, 2 How., 645.

In Tarver v. Tarver, 9 Pet., 174, this cour refused to sustain a bill to set aside the probate of a will, for the sole and avowed reason that the party had mistaken his remedy-it being "by appeal from the court of probate, accord ing to the laws of Alabama;" thereby in effect asserting that if the party had no remedy in that court, under those laws, this court would have entertained jurisdiction. But neither the probate court nor a court of law can exerciso any jurisdiction in a case like this. California V. McGlynn, 20 Cal., 233.

A surrender of papers and a relinquishment of title may be necessary. The powers of a court of equity are clearly required to complet justice between the parties.

When there is reasonable doubt as to whethe the party may have full relief in a court of law or if a more complete remedy can be had i equity, the equity court will retain its jurisdic tion.

Bicknell v. Todd, 5 McLane, 236; Boyce v. Grundy, 3 Pet., 210; Wylie v. Coxe, 15 How., 416; Barber v. Barber, 21 How., 582, 16 L. ed., 226; Payne v. Hook, 7 Wall., 430, 19 L. ed.,

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the courts of equity. They adopt them as only a rule to assist their discretion.

Brooksbank v. Smith, 2 Younge & C., 58; Story, Eq., Jur., § 1520, and cases there cited.

It is only in cases in which the remedy is concurrent in law and equity, that the Statute of Limitations is ever said to be of binding force upon courts of equity.

world who have any interest are deemed parties, and are concluded as upon res judicata by the decision of the court having jurisdiction. The public interest requires that the estates of deceased persons, being deprived of a master, and subject to all manner of claims, should at once devolve to a new and competent ownership; and, consequently, that there should be some convenient jurisdiction and mode of proceeding by which this devolution may be effected with least chance of injustice and fraud; and that the result attained should be firm and perpetual. The courts invested with this jurisess and investigation, and sufficient opportuniIn cases of fraud, the statute does not begin ty should be given to check and revise proceedto run until after the discovery of the fraud. ings tainted with mistake, fraud or illegality. Mr. S. M. Wilson, for appellees: These objects are generally accom- [*510 Proceedings in probate of a will are in rem, plished by the constitution and powers which of which the probate court has exclusive juris- are given to the probate courts, and the modes diction. Courts of equity can neither hear proof provided for reviewing their proceedings. And of a will nor establish it, nor set aside proceed- one of the principal reasons assigned by the ings in the probate court, probating wills. In equity courts for not entertaining bills on England this seems to be beyond dispute. questions of probate is, that the probate courts Archer v. Mosse, 2 Vern., 8; Nelson v. Old- themselves have all the powers and machinery field, 2 Vern., 76; Jones v. Jones, 3 Mer., 171; necessary to give full and adequate relief. Gingell v. Horne, 9 Sim., 544; Kenrich v. Bransby, 7 Bro. P. C., 437; Lynn v. Beaver, 1 Turn. & R., 63; Jones v. Jones, 7 Price, Eq., 663; Jones v. Frost, Jacob, 466; Pemberton v. Pemberton, 13 Ves., 290; Allen v. Dundas, 3 T. R., 131; Duchess of Kingston's case, 2 Amb., 756; Noell v. Wells, 1 Lev., 235; Webb v. Cleverden, 2 Atk., 424.

Spoor v. Wells, 3 Barb. Ch., 199; Wood v. Wood, 3 Ala., 756; State of R. I. v. Com. of Mass., 15 Pet., 233; Pratt v. Northam, 5 Mason, 112; Humbert v. The Rector, etc., of Trinity Church, 24 Wend., 587; Bedford v. Brady, 10 Yerg., 350; Walker v. Smith, 8 Yerg., 238; She-diction should have ample powers both of procratz v. Nicodemus, 7 Yerg., 1.

So the United States, as well in the Federal as in the state courts.

See Tarver v. Tarver, 9 Pet., 174; Fouvergne v. New Orleans, 18 How., 471, 15 L. ed., 400; Tompkins v. Tompkins, 1 Story, 547; Langdon v. Goddard, 2 Story, 267; Adams v. De Cook, 1 McAll., 258; Deslonde v. Darrington, 29 Ala., 95; Bogardus v. Clark, 4 Paige, 625; Woodruff v. Taylor, 20 Vt., 65: Ballow v. Hudson, 13 Gratt., 682; 1 Jarm. Wills, 213, and notes; 1 Story, Eq. Jur., 429, § 490; Joseph Hunter's Will, 6 Ohio, 499; Castro v. Richardson, 18 Cal., 478; California v. McGlynn, 20 Cal., 235. The appellants are barred by the lapse of time.

It is no excuse for them to say that they were in Australia and knew not of the proceedings. There was a lis pendens, and everybody had notice of it. As a proceeding in rem the whole world were parties. The doctrine of the discovery of frauds does not apply to such a case.

Mr. Justice Bradley delivered the opinion of the court:

As to the first point, it is undoubtedly the general rule, established both in England and this country, that a court of equity will not entertain jurisdiction of a bill to set aside a will or the probate thereof. The case of Kerrich v. Bransby, 7 Bro. P. Cas., 437, decided by the House of Lords in 1727, is considered as having definitely settled the question. Whatever may have been the original ground of this rule (perhaps something in the peculiar constitution of the English courts) the most satisfactory ground for its continued prevalence is, that the constitution of a succession to a deceased person's estate partakes, in some degree, of the nature of a proceeding in rem, in which all persons in the

In England after the Acts of Parliament had authorized devises of real estate, the same position was assumed by courts of equity in regard to such devises; it being held that any fraud, illegality or mistake affecting their validity could be fully investigated and redressed in the courts of common law, where also devises were recognizable.

An occasional exception, or apparent exception, to this non-interference of courts of equity with wills and devises is found in the books; but these occasional departures from the rule are always carefully placed on such special grounds that they tend rather to establish than to weaken its force. One of the most prominent cases adverted to is Barnesly v. Powel, 1 Ves.. 284, in which an executor and residuary legatee had procured probate of a forged will by fraudulently inducing the testator's son, the person most directly interested, to execute a deed consenting to its probate, and Lord Hardwicke declared the deed void, and compelled the executor to consent, in the ecclesiastical court, to a revocation of the probate. But in doing this his Lordship made a labored argument to show that the ecclesiastical court had no power to annul that deed, and that had it attempted to do so the common law courts would have restrained it by prohibition.

It has also been held that where a person obtains a legacy by inserting his own name in the will, instead of that of the intended legatee, he may be declared a trustee for the latter. Marriot v. Marriot, 1 Str., 666. In such a case the Court of Probate could not furnish a remedy, since to strike the bequest out of the will, or to refuse probate of it, would defeat the legacy altogether; and that court is incompetent to declare a trust.

*The English authorities were fully [*511 discussed by Lord Lyndhurst in Allen v. MacPherson, 1 Phil. Ch. Cas., 133, and by him and Lords Cottenham, Brougham, Langdale and Campbell in the same case on appeal in the House of Lords. 1 H. L. Cas., 191. In that case a codicil was revoked by a subsequent one, in consequence of false and fraudulent represen

tations on the part of the person to be benefited by the change, prejudicing the testator against the person injured thereby. A bill was filed praying that the executor might be declared trustee for the first legatee to the extent of the legacies revoked. This bill was demurred to and dismissed; and the whole discussion turned upon the question whether or not the ecclesiastical court had jurisdiction to inquire of the matters of fraud alleged; and the court being of opinion that it had jurisdiction, the decree was affirmed. The court came to the conclusion that the ecclesiastical court had power to refuse probate of the revoking codicil, and, indeed, had had the question before it; but after investigating the facts had granted the probate. "If," said Lord Lyndhurst, "an error has been committed in this or any other respect, which I am very far from supposing, that would not be a ground for coming to a court of equity. The matter should have been set right upon appeal. But the present is an attempt to review the decision of the Court of Probate, not by the judicial committee of the privy council, the proper tribunal for that purpose, but by the court of chancery. I think this cannot be done. It was formerly, indeed, considered that fraud in obtaining a will might be investigated and redressed in a court of equity; but that doctrine has long since been overruled." 1 H. L. Cas., 209. Lord Lyndhurst also reviewed the cases in which a legatee or executor had been declared trustee for other persons, and came to the conclusion that they had been either questions of construction, or cases in which the party had been named a trustee, or had engaged to take as such, or in which the Court of Probate could afford no adequate or proper remedy. The effect of his 512*] reasoning was, that *where a remedy is within the power of the ecclesiastical court, either by granting or refusing probate of the whole will or codicil, or of any portion thereof a court of equity will not interfere. And this was the view of a majority of the law lords on that occasion, Lords Brougham and Campbell agreeing with Lord Lyndhurst.

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fraudulently suppressed, that another will made in 1811 was fraudulently set up and admitted to probate, and that the defendants, some of whom were executors of the latter will, and others purchasers of the estate, knew the fraud and could furnish the facts to establish the same, and had received large rents and profits from the estate, of all which the bill sought a discovery, and an account of profits received. The bill was demurred to, and on a division of opinion between the judges of the circuit court the case came to this court on several questions stated, * one of which was, whether the [*513 circuit court as a court of equity could entertain jurisdiction without probate of the suppressed will. Justice McLean, delivering the opinion of the court, said: "Formerly it was a point on which doubts were entertained, whether courts of equity could. not relieve against a will fraudulently obtained. And there are cases where. the chancery has exercised such a jurisdiction. In other cases such a jurisdiction has been disclaimed, though the fraud was fully established. In another class of cases the fraudulent actor has been held a trustee for the party injured. These cases [referring to various cases cited in the opinion] present no very satisfactory result as to the question under consideration. But since the decision of Kerrich v. Bransby, supra, and Webb v. Claverden, 2 Atk., 424, it seems to be considered settled, in England, that equity will not set aside a will for fraud and imposition. The reason assigned is, where personal estate is disposed of by a fraudulent will, relief may be had in the ecclesiastical court; and, at law, on a devise of real property. 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. After referring to several cases, the judge proceeds: "The American decisions on this subject have followed the It seems, therefore, to be settled law in En- English authorities. And a deliberate considgland that the court of chancery will not enter-eration of the question leads us to say that both tain jurisdiction of questions in relation to the probate or validity of a will which the ecclesiastical court is competent to adjudicate. It will only act in cases where the latter court can furnish no adequate remedy.

It is laid down in the Duchess of Kingston's case, 20 Howell, St. Tr., 544, it is true, that fraud will vitiate the most solemn adjudications of all courts; and so it will when set up in the proper manner by the proper parties and in the proper court. But a person who in contemplation of law has had a day in court, and an opportunity to set up the fraud, and has not done so, is forever concluded, unless he was ignorant of its perpetration, in which case he will be entitled to set it up whenever he discovers it, if not himself guilty of laches.

The same principles substantially have been adopted by most of the courts having equity jurisdiction in this country. The point was considerably discussed in the case of Gaines v. Chew, 2 How., 619. That was a bill filed by the heir at law of Daniel Clark, and charged that a certain will made by him in 1813 was

the general and local law [of Louisiana] require the will of 1813 to be proved before any title can be set up under it." The court, however, sustained the bill as a bill of discovery to assist the complainants in their proofs before the Court of Probate, and intimate, on the authority of Barnesly v. Powell, that if the Probate Court should refuse to take jurisdiction from a defect of power to bring the parties before it, lapse of time, or any other ground, and *there should be no remedy in the higher [*514 courts of the State, it might become the duty of the circuit court, having the parties before it, to require them to go to the Court of Probate, and consent to the proof of the will of 1813 and the revocation of the will of 1811; and the judge also went so far as to intimate further that should this procedure fail it might be a matter of grave consideration whether the inherent powers of a court of chancery might not afford a remedy, where the right was clear, by establishing the will of 1813. Of course, the latter expressions were obiter dicta, and can hardly be said to have the support of any well con

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