[Present, Chancellors Rutledge, Marshall and James.]

July, 1805.

#### Andrew M’Dowall, *vs.*Henry Peyton, and Hugh Hutchinson and Ann his Wife.

Where a will lias been proved before the ordinary, without opposition, the next of kin interested to oppose it being abroad, andknow-ing nothing of the will till after the probate, this court will give the parties an opportunity of examining and litigating the will, by directing those benefited by the will to consent to a revocation of the prohate and a re-examination of the will before the ordinaiy.

THE bill of complaint stated, that the complainant Andrew M’Dowall of Carrickfergus in Ireland, is the only brother and next of kin to Alexander M’Dowall, deceased, who departed this life in the year of our Lord, 1799, in Charleston. That the said Alexander died seised and possessed of a considerable estate, real and personal in this state *;*and that the said Alexander entertained for complainant a sincere and fraternal love, as appeared by his letters filed as exhibits, and numbered 1, 2, 3, *3144, 5, 6, 7 and 8,which contain expressions of strong attach ment, and which made complainant believe that it was the intention of hisbrofher Alexander, that he should possess his estate; and particularly by a letter, a copy of which is filed as an exhibit and marked A. from the said Alexr’. addressed *to*Mr. John Levingston Largan. Complainant shews that soon after the death of his brother Alexander M’Dowall, a paper written on and said to be the last will and testament of the said Alexander was set up, of which a copy is herewith filed and marked B. which was very much to the surprise of complainant as by the said paper the estate of the said Alexander M’Dowall is made to go in a channel different from that which the said Alexander would have pointed out, had he been in a sound and disposing mind, or had not improper means been used to make him sign the said paper. And complainant affirms that the said Alexander M’Dowall was not at *the time*thatheis said tó have signed the said paper, of sound and disposing mind, and that improper means were used to make him sign it. And that the same is not his last will and testament. And complainant states that the residue and remainder of the estate, that is mentioned in the paper called a will, is not worth one shilling. That the said Alexander M’D. knew well the state of his property, and intended complainant and his children to be the objects of his bounty *;*and complainant states that the said Alexander M’D. when he is said to have signed the said paper, declared that he intended that his property should go to complainan’s children. Complainant charges farther that the said Alexander M’D. did not sign the paper aforesaid voluntarily, but that his hand was held when it was signed. That the said Alexander was speechless and did not by any act or expression of assent authorize his signature to the same, disposing of his estate from bis nearest relations, to Miss Nancy Peyton, who hath been since married to Capfc. Hutchinson of the said city and state, and to Capt. Henry Peyton, who had married a daughter of the said Alexander, *315but she was dead without issue. And complainant further charges that the said H. Peyton, Hutchinson, and his wife Nancy, have since possessed themselves of all the estate of the said Alexander M’Dowall, and set up a claim to the same, under said pretended last will and testament.

The bill prays for relief in the premises, and that the defendants may be compelled to account to complainant for all and singular the rents and profits of the estate of the Alexander M’Dowall that have come into their hands said and possession.

To this bill the defendant filed an answer denying the fraud charged in obtaining the execution of the last will and testament of the said Alexander M’Dowall; and also pleading in bar to said bill and the demand for an account, the probate of the will made before the ordinary who hacl exclusive jurisdiction on the subject.

The answer set forth, that the above named defendants can neither admit or‘ deny, having no knowledge and therefore require that it may be proved, that the said Alexander M’Dowall died, leaving the said Andrew his only brother and next of kin. They admit he died, seised in fee of real and personal estates as will be shown per exhibits A. and B. That his personal estate has fallen short of paying his debts, as will appear by H. Peyton’s accounts, who qualified as executor of said estate; that all his real es^ tate, (2 houses and lots of land excepted, which were devised by him to the said Ann) were sold under execution, being mortgáged for the purchase money, the’greatest part of which still remains unpaid. That he the said Henry is apprehensive that recourse must be had to the houses and lots above mentioned to satisfy the debts remaining of the said Alexander. That as they the defendants have not seen the original letters exhibited with complainants bill, they neither admit or deny their authenticity; but that they do not admit of the construction and inferences drawn from said letters by complainant. That they admit the will filed with complainant’s bill is *a*true copy. That Hugh *316Hutchinson acknowledges himself a stranger to all the circumstances attending the execution of the said will. That Henry Peyton and Ann Hutchinson deny the said Alexander IVPDowall not being in his senses when he signed the said will, or that any fraudulent means were taken to obtain said signature. That they do net know or believe that either before or after the execution of said will the said Alexander had declared that his property should go to none but the children of the complainants : But that they had understood he had declared to the com trary. That he voluntarily signed the said will, and that though weak in body, he made observations which plainly shewed he was in his senses. That said'-in was'lying several days on the desk before him; that they believe it was made conformable to what he' previously declared. — . That he the said Henry Peyton was his son-in-law, and that the greatest friendship subsisted between them ; and a constant intercourse and mutual good offices. That the said Ann lived with him, and was much regarded by him. That he the said Henry Peyton has taken no part of the said estate as legatee. That he apprehends said estate will prove insufficient to. pay his legacy. That the said Ann Hutchinson is in possession of said houses, but is apprehensive that recourse will be had to them to satisfy outstanding debt?. That they have answered the complainants bill sufficiently to acquit themselves of the fraudulent practices therein charged to them; but do contend that the probate of said will, made by the ordinary of Charleston district, should be conclusive, and operate as a bar to the said complainant having any further account, discovery or relief in this honorable court, touching the real and personal estate pf said testator and defendants.

At the hearing, it was contended by Mr. Phingee and Mr. Cheves for the defendants that the plea in bar should be first disposed of.

They argued that the jurisdiction belonged exclusively to the court of ordinary, and that the will having been proved in that court, the probate was conclusive. That this was the case in England, and more *317
      *strongly*in this country, where the legislature had by the express provisions of the statute of 1789, given an appeal to any party dissatisfied with the sentence of the court of ordinary, to the circuit court of law, which excluded every other mode of examination. That no appeal had been made in this case-, and this court ought not now to open the probate. That it would be better to follow a known and fixed course, and that the law should be settled, even if injustice should sometimes be done to particular parties. They cited 7 Bac. 380.

Mr. Gaillaud and Mr. DRAyton argued that this court was bound to interfere, and to prevent injustice.— That though the jurisdiction was in the court of ordinaiy, with appeal to the court of law, that did not prevent this court from interfering in a case where the justice of the case had not been obtained, by fraud, or accident or surprize.

That the probate made in the court of ordinary, was made *ex parte,*with-no person to oppose it. That the complainant and the nearest of kin of the deceased, were living abroad in Ireland at the time of the probate, and knew nothing of the will, or the proceedings to establish it, till long after the will was proved, and after the time for appeal, (which is only twenty days) had expired.

That *ex necessitate*rei, this court was obliged to take up the case, as in the alimony cases, and to open the door to relief in some way, else great injustice might result by sur-prize on the parties.

They cited 1 Y es. sen. 287, 8. Barnsley vs. Powell j SthViner, 167. Eq. Cas. abr. 133. 2 Vesey, sen. 155 ^ and 2 Atk. 378.

The court being of opinion that the case should be gone into, the will of Alexander M’Dowall, was produced. It bore date 26th December, *1799;*and disposed of the estate to defendants.

The evidence taken under commission was produced, to prove that the complainant and the deceased were brothers, and on friendly terms. Eli Plumb proved the hand writing of the testator to several letters from testator to the *318complainant, from the year 1785 to February *1799.*The letters were read, and were of a friendly nature, and went t0 proVo the good footing the complainant was upon with his brother the deceased testator.

Mr. Hunter proved that he knew the complainant and the testator, both here, and in Ireland. The testator al» ways spoke of his brother the complainant with affection.

Dr. Irvine attested that he had attended the testator between one and two years before his death, and immediately before and at his death. One or two days before his death, he was attacked with a nervous complaint. He had convulsions, and after them was incapable of making a *will;*but upon the operation of a blister, he spoke something, yet it was incoherent, and the witness could not say he was in his senses. The severe attack began four or five days before death, and when witness was called in, he was by no means capable of making a will. But he might have been capable an hour or two before. He had 'some lucid intervals. Witness cannot say if there was any fraud in obtaining the execution of the will. ' A close friendship existed between the testator and the defendants Mr. Pey-ton and Miss Ann Peyton. She attended him for eighteen months.

Mr. Plumb attested that he was with the testator prior to the convulsion *fits;*he was very low *;*he was there the evening before his death *;*he died early the next morning. He had no conversation with him before the convulsion^ about his brother the complainant.

On the part of the defendant, Mr. Robert Stewart proved that there was apparently a strict friendship between the testator and the defendants. That the day after Christ-mass, (December, 1799,) a message was left for him to go to Captain M’Dowall’s, that he went after candle light. He was then sitting up in his bed with assistance — that his will was read to him. His spectacles were handed to him, and ho, the testator, looked over it, and said seal it} seal it; and Mr. G. White then sealed it. ‘ Some person observed that none of them had noticed that it was n<jt *319sealed but himself. The testator looked over the will long enough to have read it. "When the pen was putin his hand, it shook so, that he could not sign, and the wit-ne -a held his wrist — but neither he nor any other guided his hand. He had grasped the pen before witness held his wrist. The testator pointed to the spot where the seal ought to be put. The witness saw no practises or fraud. Mr. Peyton, the defendant, is a man of rectitude.

Mary Garner proved that she was the testator’s nurse, and was with him from the 26th December, till his death on the 28th.

At the time of executing the will, Miss Teytc-o helped him on with his spectacles. Mr. Stewart read the «Hi to testatorv and he said seal it, seal it. She' saw Dr. Irvine there several times after the 26th December. He was there on the 26th December. Some one was in the back room. The testator enquired who it was, naming some person.

Dr. Denny proved that there was a friendship between the testator and the defendants. Heard testator say Miss Peyton should be provided for.

Mrs. Armstrong proved that there was a friendship between the testator and tRí^ 'défen'dpnts. Heard him say longbefore his death that he would provide for Miss Pey-ton.

Mr. W. Smith proved that there was always a friendship between the testator and the defendants. The testator often said that he meant to give Miss Peyton something handsome. The Peytons bear good characters.

Mr. George White and Mr. Findley were also examined, but I have not been able to procure a full note of their testimony; nor was it material to the question.

Chancellor James

afterwards delivered the decree of the court.

The plea before the court, we believe, is a novel one in this country: the principle is undoubtedly true, that the jurisdiction of wills of personal estate belongs to the ordinary, *320and must be tided by the ecclesiastical laws. It is also a set» tied principle of law that this court cannot set aside a will of personal estate for fraud; but it must be tried in the court of ordinary. The will has been already proved in that court without any opposition; and indeed there could have been none by complainant, he being out of the state at that time ; so that the question whether it was fraudulently obtained or not, was not agitated. A difficulty arises how that question, (that of the alleged fraud) is now to be tried *;*the ordinary having already done his duty. That this court may not infringe the jurisdiction of the court of ordinary, and for the furtherance of justice, the only method that we can devise is, to decree that the defendants do consent to a revocation of the probate in the court of ordinary, which will then be set aside, and the parties be at liberty to proceed in the case before the ordinary *de novo,*who will then examine witnesses and determine the question as to fraud or no fraud, so far as his jurisdiction extends, respecting the personal-estate : and as the will contains devises of real estate also, this court will in the mean time examine witnesses, and direct an issue if necessary, to try the question *devisavit vel non.*Vide Post, Palmer vs. Mikell and others. *Jf. 3¿¡fir**