
    No. 751
    SEEDS et v. SEEDS et
    No. 19941.
    Supreme Court
    On motion to certify.
    Dock. June 28, 1926;
    4 Abs. 475.
    460. EQUITY —Where disinherited heirs allow such time to pass in bringing an action to set aside a will on the ground of fraud as to bar them of this remedy by reason of laches, may said heirs maintain an action to have a trust declared in their favor on the ground of fraud?
    Attorneys — M. L. Bigger and E. J. Greeley, Jr., for Plaintiffs; Vorys, Sater, Seymour & Pease, for Defendant; all of Columbus.
   Leona E. Seeds and other heirs brought this action originally in the Franklin Common Pleas, the petition alleging the following facts:

That.the mother of plaintiff died on September 13, 1913, and that on the day prior to her death defendants took her hand and made a mark upon a will while she was in an unconscious condition; that said will had but one witness and that at the hearing in the Probate Court another witness was procured and thereupon the will was probated; J. W. Seeds, the father of the plaintiffs, accepted notice as plaintiff’s guardian, the father being the sole beneficiary under the will which he had drawn by which the plaintiffs were disinherited. It was alleged that plaintiffs did not discover the actions of fraud until within four years prior to the filing of this petition. It is further alleged that J. W. Seeds was married to one Nancy J. Seeds in 1918, who accomplished the transferring of all of ttíe property of the estate to her without consideration.

The judgment of the Common Pleas in sustaining a demurrer to the petitions was affirmed by the Court of Appeals on the ground that the plaintiffs under the allegations of the petition were not entitled to any relief in a court of equity by reason of laches.

Plaintiffs in the Supreme Court contend:

1. That they are not seeking to set aside the will.

2. That a good cause of action has lieen stated to warrant a declaration of a trust in favor of the beneficiary by reason of fraud perpetrated by one while the grantor was incompetent, and without any consideration.  