Archer v. Meadows

Eton, J. This action was before this court at a former term, under the title of Holden v. Meadows and others, and is reported in 31 Wis., 284. The nature and purposes of the action are there sufficiently stated. Soon after the decision of this court in the case was announced, the plaintiff, Mrs. Holden, died, and the action has been duly revived in the name of the present plaintiff, who succeeds to the interest of Mrs. Holden. The complaint has since been amended, and a demurrer has been interposed thereto, identical with that interposed to the original complaint. The circuit court sustained the demurrer, and the plaintiff appeals. [169] It will be assumed, for tbe purposes of this appeal, that the additional averments contained in the amended complaint are sufficient to excuse the laches of Mrs. Holden, upon which alone the former decision was based. This makes it necessary to determine the question (which was somewhat discussed, but not decided, when the case was here before), whether a court of equity has jurisdiction to set aside a will and the probate thereof, for fraud, after such will has been admitted to probate by the proper court. It was said in the former opinion, that the cases which deny the jurisdiction of courts of equity to set aside the probate of wills obtained by fraud are very numerous both in this coun-vtry and.in England. The learned counsel for the plaintiff makes the point in his argument, that the restriction upon the jurisdiction of courts of equity is limited to frauds practiced upon the testator in obtaining the will, and does not extend to a case wherein the probate has been fraudulently obtained. "We do not understand that the counsel claims that equity has jurisdiction to set aside a will fraudulently obtained, after the same has been admitted to probate by a competent court. And, indeed, in the present state of the authorities it is believed that no such claim can be made successfully. After a most careful and laborious search, we have been unable to find a single case in modern times in which such jurisdiction has been asserted. It is not deemed necessary to mention here the numerous cases in which the jurisdiction of courts of equity in such cases has been denied. Many of them are cited in the brief of the counsel for the defendants, and in the former opinion in this case. But has a court of equity power to set aside the probate of a will where such probate has been obtained by fraud ? Our attention has been called to a single case (and we have been unable to find another) in which a distinction was made between setting aside a will fraudulently obtained, and setting asido the probate of a will to which the consent of the heir [170] was obtained by fraud. Barnsley v. Powel, 2 Vesey, Sen., 284, decided in 1749. In that case it was held that a court of equity has power to annul the probate of a will thus obtained. The views of Lord Hardwicke are so much in point on the question here involved, that I am justified in quoting from his opinion at some length. After citing some authorities which hold that a court of equity is powerless to set aside a will fraudulently obtained, and recognizing that as the settled law, he proceeds as follows: “But there is a material difference between the courts taking on them to set aside a will of personal estate on account of fraud or forgery in obtaining or making that will, and taking from the party the benefit of a will, established in the ecclesiastical court by his fraud, not' upon the testator, but upon the person disinherited thereby, and claiming after the testator’s death against it. Fraud in obtaining a will infects the whole, but the case of a will of which the probate was obtained by fraud on the next of kin, is of another consideration; upon which foundation this probate stands, being obtained from the plaintiff by fraud upon him, a weak man, and since found to be a lunatic, by the defendant’s own acts, subsequent to the death of the testator. The method of doing which was found on an agreement containing a covenant for the plaintiff’s doing all acts demanded of him by Powel; in consequence of which a special proxy under hand and seal was obtained from him, confessing the allegations; upon which sentence was pronounced of probate to the defendants, the executors. This probate depends on that deed; and is anything more proper for this court to inquire into, and set aside for fraud, if proved, than such a deed ? If a warrant of attorney to confess judgment was obtained from him, though I will not say the common law courts could not set it aside, yet a bill might be brought here in cases where they could not. This then is a ground of jurisdiction in this court distinct from the will itself.” The Lord Chancellor also expresses the opinion that the ecclesiastical court had no power [171] to set aside the fraudulent proxy, which is another reason for the interference of a court of equity. It will be observed that the court of chancery assumed jurisdiction in that case upon two grounds : 1st, because the rer lief sought consisted in setting aside the probate of the will, which depended' upon a deed fraudulently obtained ; 'and 2d, because the probate court had no power to set aside such fraudulent deed. Here we have no such case. In this case the probate depends upon the will, and cannot be annulled unless the will was fraudulently obtained. The fraud charged consists in concealing the fact that the will was obtained fraudulently ; hence, if it was not so obtained, there could have been no fraud in procuring the probate thereof. Before the court can adjudge that there was fraud in procuring the probate of the will, it must adjudge that the will was fraudulently obtained. This, as we have seen, a court of equity has no power to do, such power being exclusively in the probate court. Unlike the case of Barnesley v. Powel, therefore, we find in the present case no grounds “ distinct from the will itself ” for the exercise of the jurisdiction of a court of equity. In Texas and Kentucky, and possibly in some other states, power is conferred by statute upon a court of equity to impeach the judgment of a probate court, establishing a will, “for such reason as would give it jurisdiction over any other judgment at law.” Walters v. Ratliff, 5 Bush (Ky.), 575 ; Renn v. Samos, 38 Texas, 760. Whether a law of this kind in this state would not promote the ends of justice, is a question worthy of the consideration of the legislature. It may be observed that in England, and in some of the states, the exclusive jurisdiction of the probate courts in the matters above mentioned is confined to wills of personal estate. It is quite unnecessary to state the grounds of the distinction between wills of personal and wills of real estáte, because such distinction is abolished by statute in this state. R. S., eh. 97, sec. 21; (Tay. Stats., p. 1207, § 21). The section is as follows: [172] “ No will shall be effectual to pass either real or personal estate, unless it shall have been duly proved and allowed in the county court, as provided in this chapter, or, on appeal, in the circuit court or supreme court; and the probate of a will of real or personal estate as above mentioned, shall be conclusive as to its due execution.” The last provision was doubtless inserted for the express purpose of making the probate of a will devising real estate as conclusive as the probate of a will bequeathing personalty. The probate is made conclusive as to the due execution of the will. If the will in question was procured by fraud upon and undue influence over the mind of the testator, then it was not duly executed. Hence the allowance of the will by the county court is an adjudication that it was not so procured, and such adjudication is conclusive of the fact. Parker v. Parker, 11 Cush., 519, and cases cited. In conclusion, while I do not say that the plaintiff has no remedy, I am well satisfied that, under existing laws, if he has one, it must be pursued in the probate court, and not in the circuit court by original bill. But it must be distinctly understood that this court does not decide that the county court has power to set aside the probate of this will, neither does it intimate any opinion on that question. The order of the circuit court, sustaining the demurrer to the amended complaint, must be affirmed.