[Present, Chancellors Rutledge, James and Thomson.]

MAY, 1805.

#### Charles Palmer, *vs.*E. Mikell, junior, William Seabrook and others.

A will having’ been executed under circumstances which made it doubtful whether the testator was in such a state of mind & body as to be capable of duly making a will, and the samehaving been proved be. fore the ordinary without opposition from the nearest of kin, because they were unapprised of the grounds of doubt, the court decreed that the executors and those benefitted by the will should consent to open the probate, so as to let in the parties to a fair and full litigation in the court of Ordinary,

THE bill of complaint set forth, that the late Archibald John Calder, of Edisto Island, was seized and possessed, at the time of his decease, of a considerable real and personal estate; and died on or about the *15th April,*1804, without leaving alive a father, mother, brother, sister, wife or child ; but the following relations : your orator Charles Palmer, who was the brother of his mother, John and William Palmer, gi-andsons 'of John Palmer, a deceased brother of the mother of the said. A. J. Calder; Ephraim Mikell, jun, Ann Seabrook, (wife of Gabriel Seabroolc)|Elizabeth Mackie (now wife of Mungo Mackie,, late wife of William Baynard) and Mary Ann Sea *brook*(wife of William Seabrook,) who are the children of the late Mrs. Mikell, (wife of E. Mikell,) who was the sister of the father of said A. J. Calder, and also Mrs. Sarah Baynard, (wife of Thomas Baynard,) half sister of the father of said A. J. Calder. Complainant charges that A. J. Calder resided on Edisto Island,' and for some years before his death, had so addicted himself to the use of ardent liquors, that his body and mind were much debilitated. Tliat toward the close of his life, his imbecility was so extreme, and his lucid intervals so rare, that he could not. manage his own affairs, and was incapable of exerting the judgment requisite for the disposition of his estate by deed or will. That E. Mikell, (the husband of A. J. Calder’s aunt, and father of his *343cousins) also resided on Edleto, but that no intercourse subsisted between him or his family and A. J. C. but such a degree of aversion, that said A. J. Calder fre~ quently declared, (after the death of his wife) even before he was addicted to liquor, that the Mikell family should never get a shilling of his property; and he continued"m this disposition toward that family as long as his faculties were sound, and even after they were affected. Complainant charges that said A. J. C. being about to die, in March or April, 1804,'several attempts were made to induce him to make a will in favour of the Mikell family, particularly by Gabriel Seabrook, who married á daughter of said E. Mikell, a fortnight before the death of said A. J. C. but he refused to make any will in their favor» On 9th April, 1804, E. Mikell came to the house of said A. J. Calder, whom he had not visited for several years, and who was then extremely ill, having been deranged all the night before and that day; the said E¿ M« sent the persons present out of the room, and drew up a paper purporting to be the last will of said A« J. C. then calling in three witnesses, caused the same to be signed by said A. J. C< whose body was supported, and whose hand was guided in the act of signing. Complainant charges that When he signed said paper, said A. J. Calder was entirely deranged, and void of that mind and memory requisite to give validity to a last will; nor did he declare to the witnesses that said paper was his last will'; nor did he require their signatures, nor in any thing manifest that he knew what he was about. And said A. J. Calder continued thus intoxicated and insensible until he died, on or about 15th April, 1804, during which time neither said Mikell nor, family visited said A. J. C. but left hint wholly to the attendance of strangers. Complainant further charges that the paper thus obtained from the imbecility of said A. J. Calder, and purporting to be his last will, devises all his real estate on Edisto, consisting of three valuable tracts of land, and a small Island surrounded by a great body of valuable marsh, tobe equally divided among *344his cousins Ann and Mary Ann Seabrook, Elizabeth Bay-' nard and Ephraim Mikell, jun. (children of said E. Mikell) ánd at their death, to the heirs of their body, begotten; while no part of the real estate was devised to complainant, uncle of the testator, nor to Mrs] Sarah Baynard, aunt of the half blood, nor to the grandchildren of his uncle, John Palmer, nor were; any lands devised to complainants son, of any value, except one tract which is in dispute, claimed and occupied by other persons. And said paper also bequeaths all the negroes of said A. J. Calder,-in number 64, to be equally divided among Ann and Mary Ann Seabrook, Elizabeth Baynard and Ephraim Mikell, jun. and their heirs^ except 6 new negroes^ bequeathed to complainant’s son Charles. Thus cutting off entirely, complainant, the nearest living relation of said A. J. Calder, as well as other relations, as nearly connected with him as the children of said E. Mi* kell, and bestowing a mere pittance on complainant’s son Charles. Complainant charges that although he and his $onj (not quite grown up) had not an opportunity of frequently seeing their kinsman, A. J. C. as they lived in Beaufort district, there was no difference or coolness between *them;*and the intercourse subsisting, although rare, was kind and cordial, and said A. J. C. frequently expressed his friendship and kind intentions toward complainant and son.

Complainant further sheweth, that on the death-of said A. J. C, on or about 15th April, 1804, said paper was proved by one of the subscribing witnesses, and recorded in the office of the Ordinary, in Charleston district, on 11th May, 1804, and E. Mikell, jun. and W. Seabrook, who were nominated executors thereof, qualified thereon. Complainant believes that said executors of said will have possessed themselves of the real and personal estate of said A. J. Calder, and made an inventory of tlie whole personal estate, including certain personal estate not included in said pretended last will, and which cannot possibly pass thereby, even admitting the same to be valid, and which *345must be distributed among the nearest relations of said A. J. C. according to the act of the legislature, for the abolition of the rights of primogeniture. And said E. Mikell, jun. and Wm. Seabrook are taking measures for the division of the whole of said estate, among the several devisees and legatees, under said pretended last will; and copies of said will and said inventory, are filed with bill, marked A. and B.

Complainant charges that residing far from his said kinsman, A. J. Calder, and not having time' or opportunity to investigate fully the circumstances attending the execution of the pretended last will, and having unfortunately injured his leg immediately after the death of said A. J. Calder, which disabled him for many months,. and being unapprized of the time fixed for the probate of the will, he did not oppose the probate thereof before the ordinary, or appeal from the same when proved, as he would have done, had he been informed in proper time of the circumstances attending its execution,' and had he been able to attend to any business, or had he been aware of the application for a probate thereof. Complainant having been since informed of the state of A. J. Calder’s mind and body when he signed said last will, applied to said .executors, expressing his dissatisfaction with said paper and his resolution to contest the same, requesting either that it should be set aside by consent, or contested before the ordinary, as to the personal estate said to be passed thereby, and that an issue “ *devisavit vel*non” might be joined as to the real estate therein mentioned, and the cause tried before a jury; and that his right to á share of the personal estate of said A. J. Calder, not comprehended by said pretended last will, (admitting that the same were valid) should, at all events be acknowledged, and a distribution made accordingly.

Complainant hoped that the said executors with the de-visees and legatees under said pretended last will,sensible of the state of A. J. ((alder, at the time of signing said will, and of his incapacity to make a legal disposition" *346of bis estate, and the unjust disposition made thereof; of the right of complainant to a share of the personal estate Gf said A. Calder, not passed by said will, (even sup-' posing it valid) would have consented to set aside said' paper, and agreed that his estate should be distributed among his relations according to their legal rights, as in case of intestacy ; — -Or at least would consent to the distribution according to law, of the personal estate, not comprehended in said will; or to a solemn contest of said paper before the court of ordinary and a jury.

Complainant further states, that said E. Mikell, jun. and William Seabrook, and the legatees named in said pretended will, (except-complainant’s son Charles,) have refused to set aside said paper, or to consent that said estate should be distributed as in case of intestacy, or even to have a rehearing before the .ordinary, or any competent tribunal on full proofs relative to the due execution of said pretended last will; pretending and holding out that said .paper was executed according to the forms of law by said A. J„ Caldeiy who then enjoyed his faculties in full perfection, and was competent to dispose of his estate according to his affections, and that the same was executed by him with full knowledge of its contents; whereas complainant charges, that said A. J. C. was utterly incapable of exerting a sound mind in the execution of any deed or last will, and that said paper, purporting to be his last will, was obtained by surprize, while he was incompetent to act according to his free will-. All which doings are contrary to equity, and tend to injure complainant.

For as much then as complainant is remediless at common law and in the court of ordinary, and can only be relieved in this honorable court, he requires that defendants may be obliged to discover, whether testator was legally lit to execute his will, at .the time he did. That they discover the true state of his body and mind at that time ; that they set forth a full account of the real and personal estate of testator, and of the crops and income thereof. That they be *347directed to consent to set aside the probate, and consent *to a*contest of said wiil, and go into full proof of the execution thereof, so far as respects the personal estate passed thereby. And that an issue “ *devisavit vel non'’’*be directed to be' tried before a jury, in the Court of Common Fleas, as to the real estate, and that the executors be directed to render a just account of the personal estate, not passed thereby, and make distribution among those legally entitled thereto.

The answer stated, that the defendants, Ephraim Milcell, jun. William Seabrook, Gabriel Seabrook, Mun-go Mackie, Ann Seabrook, wife of Gabriel Seabrook^ Elizabeth Mackie, wife of Mungo Mackie, and Ann Sea-brook, wife of William Seabrook, admit that A. J. Calder was possessed of a considerable real and personal *estate;*that he died April 20th, 1804, without leaving any relations but those mentioned in bill of complaint, i hey admit that said A. J. Calder, at intervals, did make use of spirituous liquors, but assert that he was nevertheless capable, and did manage his own business. They deny that any coldness or aversion did exist between the Mi-kell family and said A. J. C. but on the contrary, from their infancy to the time of his death, he frequently visited said family, and was visited by them, when he had become *ahouse-keeper;*thathe married a daughter of said E. Mi-kell the father, and that said E. Mikell, in September, 1803, lent said A. J. C. a considerable sum of money, secured by bond, and which remained unpaid at the time of his death.

Defendants positively deny that they ever used any efforts to induce said Archibald to make the will mentioned in bill, but on the contrary, said Archibald sent for Gabriel Seabrook, and requested him to have his will made, as said Gabriel avers, and the other defendants believe. Defendants deny that they were present at the execution of the will', but according to the best of their information the said Archibald was, though very sick, u.’ly *348capable .of exercising bis reason, and was possessed of that soundness requisite to give validity to a last will, and that jle execute the same, and declare it to be his last will. Defendants deny positively that part of the bill which asserts that neither the aforesaid E. Mikell, senior, nor any of his family ever visited said Archibald in his last illness, but on the contrary, they aver that E. Mikell, jun. G.. Seabrook and William Seabrook, three of the defendants, visited him frequently, and set up with him at night, and that said E. Mikell, jun. was with him the night of his decease. And defendants declare thát they knew of no friendly intercourse subsisting between complainant and the said Archibald, except a single visit made'by the former to the latter, or Edisto, where his stay was very short, when and where complainant witnessed the frequent in tercourse between the Mikell family and said Archibald. The said defendants admit that E. Mikell, jun. and Vm, Seabrook, have taken upon themselves the execution of said will, and admit that they took into possession, with, the rest of the personal estate, such part thereof as was not disposed of under the will, as they apprehended they were bound by law to appropriate the proceeds thereof to the payment of the debts of the estate, which are so great, that the whole of the personal estate will not be much more than sufficient to discharge the same.

Defendants deny that complainant had not an opportunity to make investigation of the circumstances under which the will was made, before the probate thereof, and that he was unapprised of the time fixed for the probate of the will, for said executors aver, and the rest of said defendants believe, that on the Monday after the decease of said testator, complainant was on Edisto Island, and at the house of deceased only three days after his death, when he saw the will, and was informed of the time when said will would be proved, and that after examining said will, he, in a letter addressed to said Wm. Seabrook, declined any interference with the same; and that it was not till February last, (almost twelve months after decease of the *349testator) thattbe said defendants were informed of the pre-gent views of complainant; a copy of which note or letter is filed with the answer. Defendants therefore contend and submit the same to the court, that the probate of the court of ordinary is conclusive as to the personal estate. Defendants deny all unlawful combination, &c.

The cause came to a hearing. The following testimony was given:

Mathew O’Brien, swore, that he had been tire overseer of Mr. Calder, the testator, and resided on the plantation with him from the 1st of February, 1804, till his death in April. To the best of his r.- collection he never saw Mr. Mikell there before the day the will was executed; no message was sent for him; none could have gone without his knowledge. Mr. Gabriel Seabrook had come about half an hour before him *;*the night before the deceased was not in his right mind j he dozed frequently, and called out when no persons were there, what men are these ? Mr. Calder never gave any directions as to his plantation, after the first week of witness’s being there. He could not keep from drink. The witness asked Mr. Seabrook, before Mr. Mikell came, if he thought Mr. Calder would make a *will;*he answered, no, for he had been asked and had refused. Mr. Seabrook took him afterwards to walk towards the landing, and said I fancy a will, will be made now. When they returned he saw blank paper put on a table for Mr. Mikell, with pen and ink. Witness walked out again with Mr. Seabrook, and on returning into the hall, saw Mr. Mikell writing at the table. He was writing ■about half an hour. When the witness went in, Mr. Mi-kell laid down the pen'and went into the room of the sick man, but left the papers. He does not know how long he staid, for Mr. Seabrook again took him by the arm to walk. Whilst they were walking, Dr. Auld called for the boat, which was sent, and he came over. Dr. Auld and Mr. Seabrook then went into Mr. Calder’s sick room, *350and staid about ten minutes, and then came out. He anc[ they then went to see a sick negro, and returned, soon after Qr> Auld went away. Does not know if Dr. *•*Auld went a second time into the sick room. In about an hour after the doctor went away the will was executed, Mr. Seabrook sent for Mr. Megget, who came in three quai-ters of an hour. Mr. Mikell assisted Mr. Calder, and he signed the paper. Witness was about to retire, but Mr. Seabrook asked him to sign as a witness, and Mr. Kelly said, surely you will sign this; witness.’did so *;*but unwillingly, because he did not think Mr, Calder was in his senses *;*believes the paper executed was the one written by Mr. Mikell. Mr. Seabrook desired the witness, if he was asked about the situation of Calder when the ’ will was executed, to say that he was in his senses *;*but he told him he could not; then he desired him not to say anything on the subject, till he came before the ordinary. Witness never said he would prove the will; but in conversing with peri sons interested in the will, he said, if nothing was said about the will, all would be well.

Mr. Calder had told witness he never would give his property to the Mikells, because he had married into the family, and when his wife died, old Mr. Mikell had sent and taken away the negroes which he had given him with his daughter, and he had returned them, all except one favorite slave,

Mr, Palmer, the complainant,

arrived in his boat at Mr. Calder’s, about five or six days after his death. He had a very sore thigh, appeared to be very infirm, and complained of his head, and of a fever. He was in constant pain. He went away on the second day; walked to Mr. Meg-get’s landing in much pain, and with the help of a stick. Mr. E. Mikell, Mr. W. Seabrook, and Mr. G. Seabrook, and Mrs. Ellis were present *when*Mr. Palmer came, but went away in less than an hour. 'There was a horse and chair at the place, but Mr. Palmer did not ask for it, and it was not offered to him. If he had asked, witness would have been uneasy to have refused, and would have been *351kpprehensive of displeasing the Mikells by granting it. Mr. Palmer used the provisions of the place whilst he staid. ' "

Mr. Meggetj a subscribing witness to the will. He swore that he was sent for on the 9th April; 1804, by Mn E. Mikell, to do some writings 'That he went to Mr« Calder’s, and found Gabriel Seabrook, T. Kelly, and M* O’Briens Mr. E, Mikell was sitting at a table in a room adjoining that in which Mr. Calder lay. Mr. Mikell told witness, he had sent for him to witness a will. Witness said he had better see Mr; Calder first. He did so, and found him very'poorly. He spoke to him; and thought him in his senses. He was not' .then intoxicated; He spoke but few words to the witness, but those Were rational, and he called the witness byname. The paper was put on a waiter for him to sign, but it was not stated what the paper was, which he was to sign. The witness put his arm under the sick' man’s, to assist him. The sick man did not say it was his will. Mr; Mikell said; here is the paper you are to sign. He did not know whether it was a deed, a bond, ora will. Calder had not time to read it. He was asked if he acknowledged it to be his hand and seal, and he said yesj but not till the question was asked. He did not desire him to witness it. He did not think Calder in a situation fit to make his will. By after conversation with Calder, he found that he' knew it to be a will j but he does not think he knew the items of it. He asked Calder if he was satisfied with all that was written, and he said yes. Between the time of his coming and going in to sign the will as a witness, there was not time to have read the will over to the deceased. Upon his entrance into, the room the second timé, Mr. Mikellhad the paper in his hands. .Witness never saw Mr. Mikell there during Galder’s sickness, but that day, though he (the wit* ness) was there .several times a week. ' Witness was af-terwards applied to by Mr. W. Seabrook, to prove the will, but he said it would not be in his power to prove the will.

*352Mr. Megget cross examined, said that he would not prove the will, because he thought the proper formalities were wanting. Calder could not in his situation have dictated the will at once. It would have taken him two or three days in his situation, to have die-1 tated a will. Therefore he told Mr. Seabrook he could not prove the will.

Witness believes Mr. Mikell’s character as to moral integrity, to be good.

Mr. Calder was acquainted with Mn Calder, the deceased, whose will is in question, five years before his death. He lived 10 or 11 miles from him. . He saw him the week before his death; he was then very, sick, reduced in body and weak in mind. He was ■ not capable when he saw him of making a will, or talking of business. He would ask if there were not people in the room, and would start and ask witness if he was not afraid.' He never would converse about his dispute with the Mikells. On the 16th February, preceding his death, Calder rode to witness’s house, and the witness asked Calder if he would not make his will. He said no, the law would make, a will for him, just as he wished. He asked him if he would not give something to the Mikells. He said no. If I die in my senses, I never will leave them a shilling. He mentioned that the law would give his property to his uncle Palmer. He shewed Mr. Calder a copy of his father’s will as a form. He objected to it, because in favor of the Mikells. Saw him twice afterwards — very weak in body and mind.

Mr. Joseph Seabrook, swore, that he lived two miles from Mr. Calder, who was a man addicted to intoxication. He saw him on the 9th April. He was then very sick, and witness desired him to send for the doctor, but he would not; and witness sent for him, .himself. Cal* der’s mind was not correct, but deranged. , Witness went away at two o’clock, and returned at five o’clock. Calder was in the same state, and not fit for business. He staid with him all night, and went away at 8 in the morning. *353Calder was then somewhat better, but would only speak when allied questions, and then could not connect his ideas. Calder has expressed to him his affection for his uncle, Mr. Palmer, and his son, and said he would give the son a place, or sell it to him very cheap, if he would come and live near him;

John Patterson swore, that he has heard Mr. Calder, the deceased, say some years before his death' he wfcudd never leave the Mikells any thing. He was a man of a fickle disposition;

For the defendants, the following testimony was given :

Dr. Aukl swore, that he saw Mr. Calder the testator on the 9th April, before his death. When he got to the house he saw Mr. Mikell, the elder, coming out of the inner room, with a paper written on one side. He found Mr. Calder not so bad as he at first thought. He said he had been very ill the night before; but was then bettei', though he had a pain in his side. To all enquiries about his health, his answers were rational and connected. He was about half an hour with him the first day. It was the same on the second day. Saw him frequently after till his *death;*before which he had a copsultatioh with Dr. O’Driscoll, in which the patient appeared consistent. Indeed he always appeared So to witness.

Mrs. Ellis. She was sent for as nurse, to take care of Mr. Calder in his last illness, after the will was made. He was then in his senses, and asked for what he wanted, tea, &c. He often asked for rum and water, and was vexed when it was not given to him.

Mr. Westcot, called to see Mr. Calder, before the will was made. He said he was unwell. He took spirituous liquors with his medicines

Mr. Mickell, senior. He had heard that Mr. Calder approved of his father’s will. ' The witness told him it had nothing to do with his propei-ty — that he was of age, and could make his own will. Calder sent a servant to a trunk for paper, and to another place for pens, which he said, were of Kelly’s making. Then he had a table *'**354brought,- and be began to give him the heads of his will, which he took in writing as directed. After he had taken ¿own the heads, he retired into another room, and wrote the will. When*it was done, he took it to him, and directed him to read it. After reading some time, Calder complained of his side, and requested witness to read it to him; which he did. As soon as he had read it, witness told Calder if he wished alterations, he would write it over. He said there was no occasion. So far the witness recollected perfectly. After that, he did not notice much till Calder signed the will. Witness saw him sign it. He appeared to be collected. He gave the witness the names of six of the negroes whom the witness did not know. First he named five of them, and was then interrupted by the coming of the doctor; and he afterwards gave the name of the 6th negro. He said they were new negroes. Witness loaned Mr. Calder *$5,000*some time before to pay his debts, lie took the negroes away after his daughter’s death, because he had only loaned them? and told Calder if he would give them up, he would give him one favourite slave, the furniture and *5001.*Mr. Calder was of a fickle temper.

Mr. Parkeu, Mr. D'ESAussuRE’and Mr. Ford, for' the complainant,

contended, that there was abundant reason to set aside, or to open the probate in this case. That it was very dubious, to say the least, whether Mr. Calder was in a proper state of mind to execute a will, when he. did it. And that the probate had been made before the ordinary, without opposition or discussion, so that the. rights of the parties were decided without examination or argument. That the question of fraud or imposition was not before the ordinary; and that the complainant had no-correct or full information of the true state of things before the probate. When Mr. Palmer visited the plantation, it' was immediately after his kinsman’s death, he was in extreme ill health, and great pain, which incapacitated him from making.full and proper enquiries, and no one then *355'volunteered to make a full disclosure to him. Consequently he was not conusant of the wrong done, and of his rights. Two of the subscribing witnesses swore they Could not prove the *will;*there must be a strong doubt then on the mind of the court, whether justice had been done .in the ex parte examination which had been made j and if such doubt existed, that was quite enough to induce the court to put the case into a proper train for a regular examination, and a plenary hearing. The counsel cited 1 Vesey,sen.287. 4 Burns’ Eccl. Law, 45. 3 Atk. 161 1 Fonb. 65, 6. 2 Burr. 1012. And case 0f M’Dow-all and Peyton, recently decided in this court, (V ide ante, p. 313.)

Mr. Cheyes and Mr. Pringle for the defendants,

ar« gued that this court ought not to interfere in the case. That the evidence does not make such a case as to induce the court to bejieve that fraud or imposition had been prac-tised to obtain this will from the deceased, Mr. Calder | and without such proof, the court would not *intermeddle;*more especially as there was no proof that the complainant was kept in ignorance of the existence of the will, and of the intent to prove it. He was at the plantation of the deceased soon after his death, and was then apprized of the will. He made no objection — he entered no caveat in the Court of ordinary; but permitted the will to be proved without opposition, and acquiesced for twelve months.— That this ought to be conclusive ; for the jurisdiction over-this subject is given by law to another tribunal. It is in the court of ordinary, with an appeal in a limited time to. the circuit, court of law ■; and that jurisdiction is final and conclusive, and should not be meddled with, unless in most extraordinary cases of fraud, or where there would be a, palpable defect of justice. The counsel cited 1 Fonbl. 70. 7 Bac. 378. Gbdolphin, 154. Swinb. 6, 69, 70; and Heyward and Hazzard’s case. Bay’s Reports.

*356Chancellor James

afterwards delivered the decree of the Court.*

'The application made to the court in this case on the part of complainant is, that an issue of *devisavit vel non*should be directed to, the Court of Common Fleas, to try the validity of the will of Archibald John Calder, deceased, so far as it relates to his real estate ; and that it should be referred back to the ordinary to enquire whether said will was fairly obtained, so far as it relates to the personal property. The will, it appears, was proved before the or-; dinary by one of the subscribing witnesses of the name of Kelly, after the two other witnesses Megget and Obrien had declined proving the same, because they thought that the testator at the time of executing the will was not sufficiently in his senses to dictate or make his will.

On the part of the complainant, the two surviving witnesses to the will, Mr. Megget and Mr. O’Brien, have *357Leen produced to shew that the testator was insane at the time of making .the will. Mr. Megget appears to be somewhat doubtful, but says that he does not think that testator could have dictated the will at the time; that his ideas were not sufficiently connected to have dictated it in two or three days, and that he told Mr. Seabrook, one of the defendants, that he could not prove it. The other witness, Obrien, seems to have been very positive as to the insanity of testator *;*he says it arose from intoxication, and that he could not keep him from drink. That he was the overseer of testator, and resided on his plantation from the first of February till his death, about the 20th April: That in all that time he never gave him any directions about his plantation, except in the first week : that from excess of drink and weakness, he was almost constantly in a stupid state, and would doze and wake up, and then call out what men are those in the room, when none *358were present; and ask witness if he was not afraid. This witness also states that the will was made in half an hour or three quarters. Mr. Calder and Mr, Joseph Seabrook have also supported the testimony of Obrien as to the insanity of die *testator;*and one of the witnesses called for the defendants, has stated that the testator carried his love of strong drink so far as to take spirituous liquors with his medicines. On the other hand, two of the witnesses for the defendants, Dr. Auld, the attenc|ing physician, and Mr. Mikell, sen. who drew the will of testator, both of whom appear to be entitled to the highest credit, have declared that the testator appeared to be perfectly in his senses. Dr. Auld states that when he called as a physician to see him, which was on the day the will was made, that to all his enquiries as to his state of health', he was rational and connected, and he thinks' he corrected his servants in their statements., Old Mr. Mikell says that he *359gave him instructions to draw, his will nearly in the same manner as his father’s ; that he accordingly drew it as difected ; that he suggested to him the names of some new negroes he had lately acquired, and this after an interval in' which he was interrupted *;*that witness himself did not lenow the names of those negroes ; that after he drew the will,' he read it over to the testator, and that he approve ed of it."

From the evidence which has' been recited, it therefore plainly appears, that the question of the sanity or insanity of the testator is' extremely doubtful, and' that of itself Would be a sufficient reason for the court to interfere, as" they did in the case of M’Dowall & Peyton ; and the more especially as the will was proved by only one witness,-when the other two declare that they could not have proved it. But to this inference it is- objected that the complainant Palmer had visited the plantation of the deceas*360ed five or six days after his death, where he had an oppofi-tunity at least to have examined the witness Obrien, and tkat frotn theiice he had written to defendants that he re-linqiiished His objections to the *will;*that h'e went away the next day, and did not stir in the business Until twelve months after. It is therefore urged that this case is different from that of M’Do wall, who was out of the state,- and could not be connusárít of his rights; whereas the complainant was in the state, and if not connusánt of Jiis rights, might have made himself *so;*that consequently he' lias been guilty tif gross laches, and is not entitled to the relief of this court; But it appears on the other side that, the complainant lived at á ¿oñsiderable distance; that at the time he visited the plantation of the testator, he was in a very ill state of health, arising fromi a Wound he had received in his *thigh;*and that from a fever he was in constant pain Also, if we are to believe the witness Obrien, *361{and there is nothing to contradict - his testimony) he had been tampered with by one of the defendants, Wm, Sea-brook, hot to give complainant any information on the subject, and that he did not do so at that time. These circumstances which have been stated form a pretty good excuse for complainant; and we think this unfairness on the part of One of the defendáiits, which we must at present believe, will more than counterbalance the laches on the part of complainant, and afford an equitable ground for the interference of this court. The court therefore decrees 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 *de novo,*as to'the will of the personal estate.

*

Notb. — There is a good deal of delicacy and difficulty on the subject of the Court of Chancery, interfering with the decisions of the Court of Ordinary, in relation to the probate of last wills and testa-; ments.

There is no doubt that the jurisdiction belongs to the Court of Ordinary in the first instance. And it is laid down in the English books, that the only case in which fraud cannot be (directly) relieved against in equity, concurrently with courts of law, though discovery be sought, is the case of fraudin obtaininga will, which if ofreal estate, is constantly (since the case of Kerricke v. Bransley, 3 Bro P. C. 358, decided in 1727,) referred to a court of law, in the shape of an issue, *devisavit vel non;*and which, if of personal estate, is cognizable in the Spiritual Court. But though the Court of Equity cannot directly set aside a will for fraud, they can convert the person, practising the fraud, if he claim benefit under the yvill, into a trustee, (at least to the extent of such benefit,) for the benefit of the person injured by the fraud. 1 Fonb. 12, 13. 2 Fonb. 63, 4. In the case of Fearon, reported in 5 Vesey, *647,*the Lord Chancellor said, “this Case affords á strong instance of the inconvenience of that decision, (of Kerricke v. Bransley, 3 Bro. P. C. 358) that this Court cannot take cognizance of wills of. personal estate, as to matters of fraud.”

Indeed the subject has been much controverted and various decisions had upon it, at different periods. Formerly it was decided that a will as well as a deed might be set aside in Chancery for fraud *357or cir.cumvertion. Welby v. Thornaugh. Prec. in Ch. 123. A will of landmay be good at law, if duly executed, and yet may be set aside in Equity, if obtained by fraud. Goss v. Trapy. 1 P. Wms. 287, 2 Vern. 699. (Decided in 1715.) And vide 1 Chanpery Rep. 12, 16, for other instances of a will of lands being set aside in Equity, for fraud. But the later decisions have been the other way, see James v. Greaves, in 2 P. Wms. 270; Bennet v. Vade. 2 Atk. 324. Webb v. Claverden, 2 Atk. 424; Anonymous, 3 Atk. 17. In all which cases it was decided that the validity of a will of real estate, is triable only at law. And so with respect to testaments of personal estate, it belongs to the Spiritual Court to determine questions of fraud in obtaining them, as well as the smity of the testator. See Archer v. Moses. 2 Vern. 8, Nelson v. Oldfield. 2 Vern. 76, Kerricke v. Bransly, 3 Bro. P. C. 358; Marriott v. Marriott, Stra. 666 ; Barnsley v. Powell, 1 Vesey, sen. 287; Meadows v Dutchess of Kingston, Ambler, 756. But in cases of fraud affecting apart only of the will. Equity will decree the legatee to be a trustee for another. See Marriott v. Marriott. Stra. 666; and in Barnsley v. Powell, 1 Vesey, sen. 119, 284, Lord Chancellor Hardwicke set aside, for fraud, a deed of proxy, under which probate had been obtained from the Spiritual Court, and decreed the guilty party, to consent to a repeal of the probate.

And there are many cases relating to wills in which this court forced to interfere to prevent manifest injustice.

*358As ina case where a former will of land was cancelled by the tes* tator, on a presumption that his later will was duly executed and good, but which proved nqt to bo so, equity relieved under the head of accident, and enjoined the heir in favor of the first devisee. Onions vs. Tyrer, 2 Vern. 741, and Prec. in Chancery 459.

So where a will was decreed in the exchequer to be well proved, which was afterwards found to be forged, the court of chancery decreed that no use should be made thereof. A will of personal estate jis examinable in the ecclesiastical court, but chancery will, if possible, avoid sending it there, after it has been found to be forged by a jury, if the real estate is thereby bound and the court will go as far as it can to decree the parties trustees. See Barnsley vs. Powell, 1 Vesey, sen. 284, 7, (decided in 1749) and Kerricke vs. Bransley. 3 Bro. P. C. 358; and Powis v. Andrews. 2 Bro. P. C. 476.

Mr Fonblanque lays it down, that all parties prejudiced by the fraud, in obtaining a will, may file a bill in equity for a discovery of all the circumstances; and the invariable practice in such cases is, to seek relief; and the issue directed is to furnish the ground on which the court is to proceed in giving relief. Fonbl. chap. 2, sec. 3, note (n.)

The footing on which the different jurisdictions as to wills of real estate, and testaments ofpersonal estate now stands,.produces embarrassment, and sometimes contradiction-: and Lord Chancellor Hard-wicke thought it an absurdity that a will set aside at law for the insanity of the testator, might still he litigated on account of the personal *359estate in. the ecclesiastical court, and expressed a wish for a change.— ín such a case, he appointed a receiver instead of the executors, until the litigation in'the ecclesiastical court should he terminated. See Montgomery vs. Clarke. 2 Atk. 378.

Mischievous effects flow from this conflict of jurisdictions, complained of by Lord Hardwicke. Contradictory decisions Were made *by*the ecclesiastical court, and by the court of law, on the question whether a man was compos’of non compás, and- both decisions stood, to the disgrace of justice. See the case of Baker vs Hart. 3 Atfe, 646. So too the Dutchess of Kingston was convicted- of bigamy in the house of lords, for marrying Capt. Harvey, and afterwards in hife lifetime, theDuke ofKingston. Yet she was permitted to keep the great fortune bequeathed to her as his wife, by the Duke ofKingston, because the court of chancery was precludéd from enquiring and deciding, according to the fact, by a sentence of the ecclesiastical court obtained by the Dutchess against Capt. Harvey, in a suit for jactitation ofmarrjage, which decided that she was not married tor Captain^ Harvey, and enjoined perpetual silence oh him. See Meadowes vs. Dutchess of Kingston. Ambler, 756.

In the case *of*Fearon, 5 Vesey, 633, the court of delegates had set aside a will on parol evidence, that it had been obtained by undue influence, or that the testator intended to make a material alteration, from which he was deterred by foe management and contrivance of Eearon. On the application of Fearon,hy petition for abill of review, *360the counsel argued that thfe' admission of parol evidence to revoke, alter or annul a will, was contrary to the statute of frauds. This was ■ Opposed by the counsel on the other side, who cited many cases to shew that the court of delegates had, on parol evidence, struck out-particular clauses of wills obtained By fraud, and inserted clauses-omitted by fraud or mistake. (See 5 Vesey, 638, 9, 640,) and the Lord Chancellor said (pag’es 644, 5) that bound by the statute of frauds, this court has nevertheless directed an issue to try, whether a will has been obtained by fraud, or whether a testator haá been hindered from altering a will, and that both these issiu.es are consistent with the observance of the statute of frauds. lie was against issuing a commission of review in the case of Pearon, because he concurred with the court of delegates, that the evidence made out a cáse of fraud on which the will ought to have been set aside as it had been.

So in cases where the executors or heirs promise to the sick person to pay certain legacies, or convey certain lands to others to whom the-tfestator wished to devise, and would have made his will accordingly,but relying on such promises, forebore to do so : This court will interfere and give effect to the intentions of the deceased person, even in the case of lands, notwithstanding such promises were verbal, and the statute of frauds relied on in defence. See Reede vs. Kennigate, 1 Ves. 123, 4. Ambl. 67, (decidedby Lord Chancellor Hardwicke in 1748.) Also, Oldham vs. Litchfield, 2 Vern. 506. Thynn vs. Thynn, 1 Vernon, 296; and Sellach vs. Harris. 5 Viner, abridged- — de. *361bided by Lord Cowper. See too Drakeford vs. Wilks. 3 Atk. 539. See also the case of Dufour vs. Pereira, in Hargreaves’s Juridical Collections, in which Lord Chancellor Camden decreed a devisee and ■legatee tobe a trustee for another under thd circumst,andes of the case. Soifawillbe suppressed by the heir or Other person, this court gives relief by decreeing the heir, &c. to convey the property to the person intended to be benefited by the testator: And the decree directs that he shall hold the property. The rule is laid down that upon reasonable proof of the suppression of the will, it must be most strongly presumed against the suppressor, and the will to betaken as ' set forth in complainant’s bill till the will is produced. Hampden vs. Hampden. *1 Bro. P.*C. 250. Dalston vs. Coutsworth. 1 P. Wms. 731. 1 Vern. 452, 408. 2 Vern. 32, 561. 2 P. Wms. 748 to 753.

So too, though the court of equity does not exercise broadly and directly, a concurrent jurisdiction in cases of fraud in obtaining wills, this relates to the mode of execution, and the capacity of the testator, for there are other cases where it does interfere. If alegacy is given to a p erson under a particular character which he has falsely assumed, and which alone was the motive of the bounty, the rule of the civil law is adopted, and the legacy fails ; and this court will interfere to prevent its payment. Swinburn, 557. Kennel vs. Abbot 4 Vesey, 802. Exparte Wallop. 4 Bro. C. C. 90. Roach vs. Haynes. 8 Vesey, 593; and see Cooper’s Justinian — and Co. Lilt. 79 note (i.) And where a title depends on the words of a will, Lord Chancellur Talbot expressly lays it down that this court may determine it as well as a judge and jury. 3 P. Wms. 296, 7.