
    William M. Myers vs. John O’Hanlon.
    
      Will — Probate—Fraud—Spoliation—J'jurisdiction—Statute of Limitations — Lapse of Time.
    
    Testator died in 1835, and six days after his death his will, dated in 1833; was admitted to probate in common form. Bill filed in 1857 to set up a later will executed but a few days before the testator’s death, and alleged to have been fraudulently destroyed by a son and son-in-law of testator. The plaintiff claimed as devisee and legatee under the last will, and averred want of notice until within four years before the filing of the bill: — Bill dismissed because the matter was not within the jurisdiction oí' the Court, and, if it were, because the bill was barred by the Statute of Limitations and the lapse of time, 
    
    Equity has no jurisdiction in case of the fraudulent destruction of a will, whether of real or personal estate; the parties interested under it must seek relief in a Court of Probates.
    A bill to be relieved against a fraud will not lie, it seems, after twenty years, though want of notice be stated.
    BEFORE CARROLL, CH., AT RICHLAND, JUNE, 1860.
    David Myers, late of Eicbland District, died suddenly on tbe 3d day of March, 1835, and six days afterwards his last will and testament, dated June 26th, 1833, and a codicil thereto, dated July 3d, 1834, were proved in common form before tbe Ordinary of said district. The testator left a widow and eight children surviving him, who were all provided for by his will, except his two sons, the complainant, "William M. Myers, and John J. Myers, from whom he had been estranged for many years, and who were, by the terms of the will, expressly and utterly excluded from all share and participation in his estate. The testator was the owner of a very large estate, and the complainant and his brother John J. Myers also owned large estates which they had derived directly from their grandfather.
    In 1857, twenty-two years after the will and codicil had been proved before the Ordinary, the complainant filed this bill against James O’Hanlon, a son-in-law of the testator, David E. Myers, a son of the testator, and others, his devisees and legatees, and the heirs and representatives of such of them as had died, in which he stated, that the testator a few months before his death and after the date of his codicil had purchased a valuable plantation in Mississippi; that in January> 1835, he had become completely and entirely reconciled to the complainant, and that on or about the 20th day of February, 1835, but a few days before his death, he had made and executed a will by which he revoked the will and codicil which had been admitted to probate, and devised and bequeathed to the complainant the valuable plantation on which .he, the testator, resided, and a large number of slaves and other personalty; and that the defendants, James O’Hanlon and David E. Myers, a few hours after the death of the testator, found the said last-mentioned will among the papers of the testator, and immediately burnt and destroyed the same, and afterwards fraudulently set up the will of 1833, and the codicil of 1834, and caused them to be proved as the last will and testament of the testator, they well knowing, at the time, that they had been revoked and were null and void, and also well knowing the contents of the will of February, 1835. The bill stated the facts with much particularity and minuteness of detail, except as to the contents of the destroyed will, of which the complainant could only state that it contained the devise to him of the home-place and of about forty or fifty field hands, and other valuable bequests. Various statements and conversations of the testator and the defendants and other members of the testator’s family were minutely set forth, and the complainant averred that he had come to a knowledge of the facts which go to prove the spoliation and destruction of the will of February, 1835, within four years before the filing of his bill. The object of the bill was to set up the will of February, 1835, so far as it contained devises and bequests to the complainant, and the prayer was, that the same be set up and established and that the will and codicil which had been proved be set aside, or that the devise of land and bequests to him be established ; or that the defendants be decreed to reopen the probate, and proceed again before the Ordinary as if no such will had been proved, and as to the real estate that an issue devisavit vel non be ordered; and that the defendants be restrained from setting up lapse of time as a bar to the proceedings; and that the defendants and especially the defendants, James O’Hanlon and David F. Myers, be decreed to make good to the complainant all that he had lost by the spoliation and suppression of the will of February, 1835, and the fraudulent probate of the will of 1833, and the codicil of 1834; and for further relief.
    The defendant, James O’Hanlon, filed several pleas, by which he relied upon the probate of 1835, the lapse of time, and the want of jurisdiction in the Court, as a bar to complainant’s bill. He afterwards filed a full answer, in which he denied the statements of the bill as to the existence and destruction of the supposed will of February, 1835, and relied on the same grounds of defence he had taken in hi's pleas. David F. Myers and other defendants answered to the same effect.
    The case was heard on bill, answers, and evidence, and his Honor afterwards filed his decree, as follows:
    Carroll, Oh. The judgment of the Court proceeds upon its decision of certain legal questions, presented ■ by the answers. These may be readily apprehended, without reference to a multitude of facts which appear in the pleadings and proofs; and a formal history of the case may therefore be dispensed with. By the English law, exclusive cognizance of the probate of testaments and their revocation belongs to the Spiritual Court. This jurisdiction is, with us, vested in the Court of Ordinary; and by the Act of 1858 (12 Stat. 701) it is extended to wills disposing of real estate. A will obtained by fraud cannot be impeached in equity, “because,” says Lord Hardwicke, “ a will of personal estate may be set aside in the Ecclesiastical Court for fraud, and of the real estate, at law; and the reason is, the animus testancli, which is essential to the making of a will, is wanting in such case.” Bennet vs. Vode, 2 Atk. 324. Nor is the jurisdiction changed, though the fraud affects not the whole, but only some particular clause or portion of the will. Where one of the legacies was introduced by forgery, it was held, that- the will should have been proved in the Spiritual Court, with a partioular reservation as to that legacy. Plume vs. Beal, 1 P. Vms. 388. Upon the question of probate, the inquiry is, whether there be propounded a valid will. If valid in part, though void in part, it is still a will, and must be admitted to probate accordingly. Jolliffe vs. Fanning, 10 Eich. 191. In respect to the jurisdiction of this Court, a distinction is drawn between fraud upon the testator, affecting his will, and fraud upon the legatee, affecting his interest under it. In the former class of cases, no redress can be had here, but, in the latter, relief is sometimes granted in this forum. 1 Story Eq. 181, note 1, and authorities there cited. The plaintiff contends that his case comes within the jurisdiction of this Court, because, by the fraud of the acting executor under the will of 1833, in the suppression and spoliation of the will of 1835, he was kept in ignorance of his rights, and therefore omitted to resist the probate of the former will, or to appeal from the sentence of the Ordinary thereon, or to take any proceeding in assertion of his interest under the latter will, within the period prescribed by law; that the destruction of the will of 1835, moreover, subjected him to grievous disadvantage, in respect of the evidence necessary to prove it before the Ordinary; and that this Court ought, therefore, to interpose, by granting relief directly, or else by constraining the executor to consent that the probate of the will of 1833 be revoked. On behalf of the plaintiff’ the leading authorities relied upon in this branch of the argument were the cases of Barnsly vs. Powel, 1 Yes., Sen., 287, and Tueher vs. Phipps, 3 Atk. 359. In the former case, the executor named in a forged will had procured it to be admitted to probate in the Prerogative Court, by fraudulently obtaining from the testator’s son and heir, a weak man, and afterwards found to be a lunatic, a special proxy, under hand and seal, confessing the allegations. The bill exhibited by the son sought, among other things, to be relieved against ■the supposed will and the sentence of probate. Lord Hardwicke held that the Ecclesiastical Court had no power to set aiide the proxy; for, he remarks, it could only be done “ by inquiring whether the deed was obtained by fraud or imposition.” He places the jurisdiction of the Court distinctly upon the grounds that fraud was practised upon the son in obtaining the proxy, and by that means the probate — a fraud for which there was no relief in the Spiritual Court; and he decreed, therefore, that the executor should consent to the revocation of the probate. If probate was obtained by the suppression of the will of 1835 in this case, still more directly was it obtained by the production of the-forged will in the case referred to. Y et it is conceded by Lord Hard wicke, that upon that ground this Court could not have interposed. It was not on account of the forgery of the will that he took cognizance of the cause. For that, the remedy was exclusively in the Spiritual Court. But he interposed because of the direct and immediate fraud upon the son — not relievable in that Court — in obtaining the proxy, and the probate founded upon it. The case referred to has not been understood as standing upon any other principle. “If fraud,” says Lord Hard wicke, citing the case of Barnsly vs. Powell, “ has been practised to obtain the consent of the next of kin to the probate, the Courts of Equity have laid hold of this circumstance to declare the executor a trustee for the next of kin.” Mitf. PI. 257. In Qingell vs. Horne, 9 Sim. 548, the testator’s next of kin, in their bill against the executors, alleged that the codicil had been procured to be executed when the testator was not of sound mind; that the testator’s incompetency' was unknown to them until the time for appealing from the sentence of the Ecclesiastical Court had elapsed; and consequently they were wholly without remedy in that Court. The prayer was, that the codicil might be declared to have been fraudulently obtained, and the executors decreed trustees of the residuary estate for the plaintiffs. Upon demurrer by the defendants, for want of jurisdiction, it was urged that the Court should entertain the bill, because the demurrer admits, not only that the codicil was obtained by fraud, but also that the fraud was not discovered until the time for making that defence available in the Ecclesiastical Court had expired. The Vice-Chancellor remarks: “I know no case in which the lateness of discovery has been made a ground for the interference of this Court. There is no method of escaping from the effect of probate when granted, unless in a case like Barnsly vs. Powell, in which Lord Hardwicke set aside the ground on which probate was obtained.” No such fraud or imposition appears to have been practised in obtaining probate of the will of 1833. In Tucker vs. Phipps, the plaintiff’s wife was entitled, under her father’s will, to a pecuniary legacy, charged upon both the real and personal estate. The will had not been admitted to probate, but had been destroyed or concealed by the defendant, the executor, and the bill prayed that he be decreed to make payment of the legacy. The execution of the will was admitted, which dispensed with the necessity of an issue devisavii vel non. It was held that there was no occasion to prove the will in the Spiritual Court, to enable the legatee to recover the legacy out of the real estate, and that the defendant was entitled to have the legacy paid out of the personal estate, in exoneration of the real; yet, being the executor, he should be left to reimburse himself out of the personalty. This is the ground upon which the judgment of Lord Hardwicke is placed. It is true, he there remarks, that in cases of fraudulent or malicious spoliation, the Court will not put the plaintiff under the difficulty of going into the Ecclesiastical Court. The ground upon which this Court interposes in such cases, he thus expresses: “ In the Spiritual Court the plaintiff must prove it a will in writing, and must likewise prove the contents in the very words, which will be a difficulty almost insuperable, and which Courts of law do not put a person upon doing, and must also prove the whole will though the remainder does not at all regard his legac3r.” To subject the plaintiff to such difficulty, he adds, “would be ■giving the defendant a great advantage from his own acts in destroying or suppressing the will.” The point adjudged in the case referred to cannot avail the plaintiff here. That .decision only shows that by recognizing the interest of the legatee in respect of the charge upon the realty of the testator prior to the will being admitted to probate, there was no invasion of the province of the Ecclesiastical Court. The reason is, because wills of real estate do not come within their cognizance. It is otherwise in this State. The Act of 1858 provides that no devise of real estate shall be admitted as evidence in any cause until after probate before the Ordinary. Wills of real estate, in respect of the jurisdiction of the Ordinary, under our law, must be now regarded as standing upon the same footing, substantially, with testaments under the English law. The judgment of Lord Hardwicke cannot, therefore, benefit the plaintiff, even in respect of the lands, which he claims as having been devised to him. Nor is he assisted in anywise by the observations of that distinguished magistrate as to the jurisdiction of equity, upon the head of the suppression and spoliation of wills. It is apprehended in this State there is no variance between the rule of evidence at law and in the Court of Ordinary, as to the execution, validity or proof of last wills and testaments. By the 13th section of the Act of 1839,11 Stat. 31, appeals from the sentence or decree of the Ordinary relative to any will or testament are directed to be made to the Court of Common Pleas, and it is expressly enacted that all issues arising out of them “ shall be tried according to the usage and practice of that Court.” Upon the trial of such issues the same rules of evidence, mode of examination, and forms of procedure, are observed as on the trial of original causes in that Court. In truth, the validity of contested wills is tried and determined practically in the Court of Common Pleas. The primary decree of the Ordinary in such controversies is regarded by the parties as comparatively immaterial. It is upon the appeal to the Law Courts that the actual contest, the substantial trial, really occurs. In legal construction, the Court of Common Pleas has but appellate jurisdiction in such cases. But by the express provision of the Act of 1839, if an issue of fact is involved, the cause is to be tried anew, as though it were an original cause in that Court, and the parties are at liberty to raise new questions, never considered by the Ordinary, or even made before him. Peeples vs. Smith, 8 Bich. 90. The reasons which operate with the English Chancery in assuming jurisdiction in cases of wills suppressed or destroyed have, therefore, no application here. A party claiming under a contested will, prior to its being admitted to probate, may in this Court procure a discovery from his adversary, with a view to the proof of such will before the Ordinary, or may obtain such provisional orders as are necessary for the preservation of the estate or fund in controversy. Atkinson vs. Henshaw, 2 Y. B. 85; Phipps vs. Steward, 1 Atk. 285. The application in such case is made to the auxiliary jurisdiction of the Court. But this Court, it is apprehended, cannot, by final decree, set up or establish any title under a will, until it has been duly admitted to probate. To obtain such decree, original evidence of a will of personalty assuredly cannot be received here. For such purpose, says Lord Cottenham, “ this Court knows nothing of any will ftf personalty, except such as the Ecclesiastical Court has, by the probate, adjudged to be the last will.” Price vs. Dewhurst, 4 Myl. & Or. 81. Neither is it competent for the Court, with a view to its final decree, in respect of a devisee, to receive primarily evidence of the will under which he claims. It would be contrary to the express inhibition of the Act of 1839. It results that the Court cannot interpose in this case, either by djrect relief, or by decreeing that the executors consent that the probate of the will of 1833 be revoked.
    Apart from the objection to the jurisdiction of the Court, the plaintiff encounters another difficulty not less formidable. Between the admission to probate of the will of 1833 and the filing of the bill there was an interval of twenty-two years, and the defendants rely upon the Statute of Limitations, the lapse of time, and the presumptions thence arising, as a bar to this proceeding. The reply upon the part of the plaintiff is, that by the suppression and spoliation of the will of 1835, the executors perpetrated a fraud, which first came to his knowledge within four years next preceding the filing of his bill. While one is in ignorance of a fraudulent transaction to his prejudice, the Statute of Limitations in this Court does not operate against his right to impeach it, because, says Lord Bedesdale, "until discovery, the title to avoid it does not completely arise.” Hovenden vs. Annesley, 2 Sch. & Lef. 634; Godbold vs. Lambert, 8 Bich. Eq. 155. The plaintiff’s claim is derived from the will alleged to have been made in 1835. In his letter to his brother David, he says: " Old Bill Myers, who went to and returned from Charleston, with our father, in 1835, told me, after his death, that in returning from Charleston, only three or four days before his death, our father told him that he had in his pocket a new will, just executed in Charleston, and that he had made me the richest man of his family.” This information (assuming it to have been received) was of an impressive character, and must have reached the plaintiff as early as the spring of 1836, his informant having died not later than that date. The recent and entire reconciliation between the plaintiff and his father, and the demonstrations on the part of the latter of his former affection and attachment for the plaintiff, as alleged in his bill, must have strongly inclined him to give credence to the information referred to. The father came to his death by violence within forty-eight hours after his return from Charleston. Though the new will had not been found among the papers of the testator, or elsewhere, after his death, the presumption of its revocation, under such circumstances, could scarcely have arisen. Durant vs. Ashmore, 2 Bich. 192. The plaintiff must be held, therefore, to have had notice of the will of 1835, if there was such will. According to his information, that will provided for him most liberally, and materially modified, if it did not entirely revoke, the will of 1833. “It is believed," says Chancellor Harper, that “no case can be put in which a man knows that another claims and is in the enjoyment of what belongs to him, and neglects to pursue his claims at law, where there is nothing to prevent his doing so, that he will not be barred by the statute.” Drayton vs. Marshall, Bice, 385. That the plaintiff’s remedy was in the Court of Ordinary cannot affect the application of the principle here announced. In point of fact, until the statute of 1858, the plaintiff’s title to the lands devised to him under the will of 1835 (if there was such a will) must have been asserted exclusively by action at law. If, by the suppression or destruction of the will of 1835, the fact of such will having ever existed had been kept concealed from the plaintiff; his case would have been far stronger than it is. But, notwithstanding its spoliation, information that there was such a will subsisting at his father’s death came, as we have seen, to the plaintiff’s knowledge, at least as early as the spring of 1836. He was aware at that time that he was entitled to a valuable portion of his father’s estate, and it was withheld from him. Where a party is aware of his right, and of the injury it has sustained, his claim to be relieved exists, undoubtedly, subject to the operation of the Statute of Limitations. In such case it is entirely immaterial whether the wrong, was effected by open force or secret fraud. If the claimant is aware of his right and of its invasion, he is bound to assert his claim for redress within the statutory term, though the immediate agencies employed in effecting the -wrong may include a fraud of which he is wholly ignorant. Immunity against the operation of the statute, it is conceived, extends only to such frauds as involve in them ignorance, by the party injured, of his right, or of its violation. Eor the reason indicated, the Statute of Limitations must be regarded as operative against the claims of the plaintiff) though he were in profound est ignorance, until within four years before the filing of his bill, of the spoliation of the will of 1835, assuming such spoliation to have occurred. The injury that he sustained resulted from the will of 1835 not being produced and admitted to probate. Whether that will had been casually lost or fraudulently suppressed, the consequence to the plaintiff was precisely the same. If he was in ignorance of the spoliation, he nevertheless knew of its injurious effect upon his rights, and such knowledge was sufficient to subject his claim for relief to the operation of the statute.
    Although, in the apprehension of the Court, the point is not material, it is, perhaps, due to the defence to inquire whether the plaintiff did not have notice more than four years before he exhibited his bill of the fact of the spoliation, assuming it to have occurred. Evidence is not wanting that early intimations had reached him of such spoliation having been perpetrated. In his letter to David E. Myers, already referred to, the plaintiff says: "You will remember that at the time of the death of our father, it was whispered about that a will had been burned at his residence on or about the day of his death, which, it was said at the time, was not signed or executed. I heard all this about the time of his death, but was entirely unable at the time to learn any additional facts.” Whether such intimations, of themselves, would amount to notice, it is not necessary to determine. Coupled, however, with other information received by the plaintiff) importing that there was a will later than that of 1833, subsisting at his father’s death, whereby a large property was given to Mm, the whisperings referred to were most significant and impressive. The information wMch reached him as early as the spring of 1836 is regarded as imparting notice of the spoliation sufficiently to put the plaintiff upon the assertion of his rights. It may be conceded that the plaintiff was unprovided with the necessary proof to sustain his claims until within four years prior to the filing of Ms bill. But this cannot avail him. In such case the inquiry is, whether the plaintiff had notice of the fraud, and not whether .he could prove it. Parham vs. McCrary, 6 Eich. Eq. 146; Prescott vs. Hubble, 1 Hill Oh. 217.
    If the plaintiff’s bill be saved from the operation of the Statute of Limitations, upon the ground that it seeks to avoid a fraud but recently discovered, the question then arises, whether such fraud is relievable after twenty-two years have elapsed. Presumptions from such lapse of time are not “absolutely irrebutable,” but are strong presumptions “of fact ” which “ shift the burden of proof,” and are well nigh invincible. Stover vs. Duren, 3 Strob. 448; Foster vs. Hunter, 4 Strob. Eq. 20. They are not founded merely upon the ground of acquiescence or laches on the part of the claimant, but also upon consideration of policy and convenience, which operates to the preservation of the public peace,, and the quieting of men’s possessions. Fldridge vs. Knott, Coop. 215. " It has been,” says Lord Eedesdale, “ a fundamental law of state policy in all countries, and at all times, that there should be’some limitations of time beyond which the question of title should not be agitated.” Houvenden vs. Annesley, 2 Scb. & Lef. 630. “ The lapse of twenty years,” says Chan. Harper, in Kinard vs. Piddlehoover, 1 Hill Ch. 378, “ is sufficient to raise the presumption of the grant of a franchise, the payment of a legacy, or almost any thing else that is necessary to quiet the title to property. This is the general equitable law.” There exists a moral necessity for such a rule. The case of a fraud, recently discovered, should not be held exempt from its operation. When the plaintiff alleges in his bill that the fraud which he seeks to impeach was not discovered until within the four years next preceding, the burden of proof is thrown upon the defendant, and he must show that the plaintiff had earlier notice. Shannon vs. White, 6 Eich. Eq. 96. It would not be gravely argued that, notwithstanding the lapse of sixty years or more, a party laboring under no personal disability was still entitled in this Court to avoid a transaction, upon the ground that it was tainted by fraud, which he had but recently discovered. Yet if the boundary of twenty years be passed, there is no recognized limit beyond at which to stop. It could not be endured after such a period that by the mere allegation of the bill that the fraud had been first discovered within four years, the defendant should be subject to the grievous burden of proving notice had by the plaintiff prior to that time. Under such circumstances, the earlier and more perfect the plaintiff’s knowledge of the transaction in all its particulars and the more thorough his acquiescence in it, the more difficult would be the required proof. “ Can I,” says Lord Eedesdale, “ pronounce a transaction fraudulent, which happened eighty years ago, now, when everybody who knew any thing of the original transaction is dead ?” 2 Sch. & Lef. 640. In Bossard and White, 9 Eich. Eq., it is said: “ Why may not the lapse of twenty-four years raise a presumption of notice, that lapse of time raising a presumption of almost any fact necessary to quiet title?” In Pulteney vs. Warren, 6 Ves. 92, Lord Eldon remarks: “If there be a principle upon which Courts of justice ought to act, without scruple, it is this, to relieve parties against the injustice occasioned by its own acts or oversights, at the instance of the party against whom the relief is sought.” Yet, after twenty years, a bill of review will not lie for error of law apparent on the record. Smith vs. Olay, Amb. 647 ; Mitf. PI. 88. Nor after that period will leave be granted to file such bill, upon the ground of newly-discovered evidence. Story Eq. PL, sec. 419. The present bill is, in substance, for a review of the proceedings had in the Court of Ordinary. If, after twenty years, this Court will not review its own proceedings, much less will it interfere after that period for the review of the proceedings before the Ordinary. It would be a reflection upon the Court, if it were less willing to correct its own errors than those of another tribunal.
    The grounds of defence that have been considered were first presented by formal pleas, and were also relied upon in the answers subsequently put in. The attention of the Court has been directed to the rule, that where the plea covers the whole bill, and the defendant also answers, the answer overrules the plea. Assuredly, the defendants are in no worse condition than' if they had simply answered, and had omitted to put in their formal pleas. The meaning of the rule referred to is, that if the defendant submits to answer, he must answer fully: "He is not to shield himself from making a full answer, on the ground of the excuse which he offers in the answer itself.”j But if there be any matter which might be the subject of a plea in bar of the bill, the defendant may state and rely upon it in his answer. Weatherford vs. Tate, 2 Strob. Eq. 29 ; Miller vs. Furse, Bail. Eq. 188; Yarborough vs. Bank of Georgia, 4 Eich. Eq.470 ; Mitf. Pl. 308. Such is the familiar practice of the Court. There is no conflict between the cases referred to and the case of Joyce vs. Gunnells, 2 Eich. Eq. 267, because the defence there relied upon was in the nature of a mere dilatory plea. Other questions and topics were discussed at the hearing, but it is not deemed necessary to consider them here.
    The matters complained of by the bill, in the opinion of the Court, are not within its jurisdiction, and, if they were, are regarded as barred by the Statute of Limitations and the lapse of time. It is so adjudged, and it is ordered and decreed that the bill be dismissed.
    
      The complainant appealed, and now moved this Court to reverse tbe decree of bis Honor, tbe Chancellor, and that tbe cause be remanded for another trial, or a decree be made by tbe Court of Appeals granting tbe relief prayed by tbe bill, upon tbe grounds:
    1. Because tbe Court has jurisdiction to grant relief in some one of tbe forms prayed by tbe bill, and it is a fit case for its exercise.
    2. Neither tbe Statute of Limitations nor lapse of time can, under tbe law and course of tbis Court, be interposed as an obstacle to tbe relief claimed by tbe bill.
    3. Complainant bad no knowledge of tbe spoliation of tbe will till within four years before bill filed.
    
      é. Complainant bad no sufficient knowledge of tbe spoliation of bis father’s will until within four years before bill filed, and certainly not of tbe facts constituting tbe fraud. If there was proof enough to put him on tbe inquiry, yet it was impossible to develop tbe fraud and spoliation, tbe evidence thereof being derived mainly from tbe confessions of tbe parties implicated, and these were not made till within four years before tbe filing of tbe bill.
    5. His Honor announced to tbe counsel arguing tbe cause that be was satisfied a prima facie case bad been made out, and that relief must be granted in some one of the forms prayed by tbe bill, and declined to bear tbe argument.
    6. The cause was not fully beard upon tbe main grounds of the bill, to wit, tbe right and duty of tbe Chancellor, upon the case made, either to order an issue devisavit vel non, or to remand tbe cause to tbe Ordinary for trial, opening tbe probate, and enjoining tbe defendants from setting up in defence tbe plea of tbe Statute of Limitations or lapse of time since the original probate; tbe argument having been arrested by tbe Chancellor.
    
      
      DeSaussure, Arthur, for appellant.
    
      McMaster, contra.
    
      
       In Gains vs. Chew, 2 How. 618, 15 Cur. 236, it was thought by the Supreme Court of the United States that relief to a certain extent could be given in equity, under very similar circumstances, and after a lapse of more than twenty years. In Hudson vs. Weatherill, 13 Eng. L. & E. R. 132, 18 Jur. 233, decided in 1853, probate had been granted establishing the validity of a certain testamentary instrument, two of the provisions of which, one a devise of real estate to the defendant and the other a bequest to him of a note for £100.0, were impeached by the bill on the ground that those provisions were void because of fraud and undue influence, and Stuart, V. C., gave relief, declaring defendant a trustee for the heir at law of the real estate, and for the next of kin of the personalty. The Vice-Chancellor seemed to think, upon the authority of Lord Cottenham, that if the whole will were impeached for fraud, equity, notwithstanding the prohate, had jurisdiction; but he decided the case on the authority of Gingell vs. Horne, 9 Sim. 539, the doctrine of which case, he said, “ I understand to be this, that although probate has been granted establishing the validity of a testamentary instrument as a will, yet the validity of a part of that instrument, containing a gift to an individual, is challengable in this Court upon the ground of fraud or other equitable circumstances. In such a case this Court has jurisdiction to interfere, and to declare that the legacy inserted by fraud or undue influence is invalid, and fastens upon the gift the character of a trust for the next of kin, or for those who are entitled to challenge the gift.” He further cited Seagrave vs. Kirwan, 1 Beat. 157; Wilford vs. Bulkley, 2 Cl. & Fin. 102; 2 Bligh, N. S. 111; and Mitf. Pl. 300. — R.
    
   Per Curiam.

We have attentively considered this case, and listened to the elaborate argument on the part of the complainant, and are led to the conclusion that the Chancellor’s decree is right.

It is therefore ordered and decreed that the Chancellor’s decree be affirmed.

O’Neall, C. J., Johnstone, J., and Wardlaw, J., concurring.

Decree affirmed.  