
    Clarke et al. v. Sawyer et al.
    
    The decree of the chancellor in this case, annulling the will of the late Jchn Fisher, deceased, as obtained by fraud and undue influence, and reversing the decision of the assistant vice chancellor of the first circuit, affirmed.
    
    A court of equity will not entertain jurisdiction to set aside a will of real estate for fraud, or on the ground of the testator’s incompetency, when there is a perfect remedy at law, and the objection is taken in due season.
    But the objection comes too late on appeal, where the parties have submitted themselves to the jurisdiction of the subordinate court, and gone to a hearing upon the merits.
    Clarke v. Sawyer, 2 Barb. Ch. 411, reversing s. o. 3 Sandf. Ch. 351, affirmed.
    Appeal from the late court of chancery, where the bill was filed in the year 1828, by James B. Clarke and Eleanor his wife, Peter Clarke and Maria his wife, for the purpose of annulling the will of the late John Fisher, deceased, of the village ot Brooklyn. The said Eleanor and Maria were the heirs at law of the decedent, and the defendants to the bill, or some of them, were devisees of the real estate whereof he died seized. The same will was declared void by the chancellor as a will of personal estate, on appeal from the surrogate of the county of Kings, who had admitted it to probate. The chancellor’s decision proceeded upon the ground of the decedent’s imbecility of mind, and the undue influence to which he was subjected. (See Clarke v. Fisher, I Paige, 171 ) The present suit was brought to a hearing upon the same testimony which had been taken before the surrogate, and used before the chancellor on that occasion. The assistant vice chancellor of the first circuit, to whom the cause was referred for hearing in the first instance, held the will to be good and valid as a disposition of the testator’s real estate, and he dismissed the bill. (See 3 Sandf. Ch. Rep. 351.) The complainants appealed to the chancellor, who reversed the decree of the assistant vice chancellor, and directed a decree to be entered declaring the will void, and that it was obtained by fraud and imposition. The defendants, or some of them, then appealed to this court. The case will be found stated at large in the reports above mentioned.
    
      P. Y. Cutler, for appellants.
    
      W. Silliman, for respondents.
    
      
       In this case a majority of the court -were of opinion, upon all the facts, that the chancellor had properly set aside the will, but without passing upon the questiou as to the degree of mental capacity necessary to make a will. The case is here briefly reported, rather to preserve its history, than on account of the novelty or *mportance of any principle decided.
    
   Shankland, J.

The bill in this cause is filed by the nieces of John Fisher, deceased, and their husbands, to set aside his pretended will, on the ground that at the time of its formal execution, he was not of sound mind, and also upon the ground that if he was of sufficient capacity to make a will, yet that he was induced to make the one in question by fraud and undue influence, exercised over him by his last wife, who is one of the defendants in the cause.

Regarding as I do, the cases of Stewart’s executor v. Lispenard, (26 Wend. 255,) and Blanchard v. Nestle, (3 Denio, 37,) as fixing the standard of testable capacity at any given point, above that of the idiot and lunatic, the will cannot be declared void for the want of a sound disposing mind.1 But I am convinced by the evidence in the case, that the testator, from the character of his disease, its long continuance, and the dependant state to which he was reduced, was completely under the control and dictation of his wife, and that she dictated the bequests in this will instead of the testator. I am led to this conclusion, irrespective of the testimony in relation to the fraudulent conduct of the wife of Lawrence Fisher, in imposing a surreptitious child upon the family, and thereby inducing a bequest in its favor, by the suggestion and recommendation of Diana, at the time of the making of the will. I do not think the evidence sufficient to prove she knew the child to be an imposture.

The counsel for the appellant seeks to reverse the decision of the chancellor, upon the ground that a court of chancery has not jurisdiction, upon the facts of this case, to declare the will void but that the remedy is at law. This point was not made in the answer, nor before the chancellor, and is now raised foi the first time. It is true that a court of equity will not entertain jurisdiction to set aside a will of real estate for fraud, oi on the ground of the testator’s incompetency, where there is a perfect remedy at law, and the objection to the jurisdiction is taken in due season. (1 Comst. 215.) But after litigating the question on the merits, without raising the objection in the two inferior courts, it is now too late to raise it here, unless the court of chancery is wholly incompetent to grant the relief asked for, for the entire want of jurisdiction. (2 Paige, 396; 4 id. 400; 2 id. 509.) Where the parties have submitted themselves to the jurisdiction of a court of equity, without objection, as in this case, I have no doubt that court can adjudicate upon the question of the validity of a will of real or personal estate It is therefore unnecessary to inquire whether the circumstances that the possession of the real estate in this case was out ot the complainants, and that the bill calls for an account of the rents, and for an account of the personal estate, and to remove the cloud upon the title caused by the pretended will, would not of themselves furnish sufficient foundation for the jurisdiction of the court of chancery, if the objection had been taken 'in due time and manner.

The decree of the chancellor, reversing that of the assistant vice chancellor, should' be affirmed with costs, and a reference must be had, as directed in the chancellor’s decree.

Ordered accordingly.  