submitting all his witnesses to examination. [79] [THE VICE-CHANCELLOR. In the case of a bond debt settled upon trusts, you could not bring the obligor disputing the bond to try his right here.] No; that proves that there must be an original jurisdiction in the case of wills. If the Court of Chancery acquired jurisdiction only by reason of the trusts, it might, in like cases, decide on the validity of any legal instrument in the course of trying such equitable rights. Berney v. Eyre (3 Atk. 387) was a suit to establish a legal devise against the heir. So, in Scoones v. Morell (1 Beav. 253), a similar suit appears to have been sustained by a legal devisee. [The ViceChancellor sent for the Reg. Lib. 1834, B. 2; from which it appeared that the decree in that case contained a direction that the trusts of the will should be carried into execution.]

If the Plaintiff has a right to institute a suit in Chancery in respect of any equitable interest which she may have in the property, there can be no question as to her right to have the will established against the heir. But here she has such right, because of her equitable interest under the settlement, and the will forms a part of her equitable title. If the trusts were declared by the will of course there would be jurisdiction, but there is no privity between the heir and the cestui que trust. The trusts in no way affect the heir, and in principle an equitable devisee can have no more right to sue the heir than an equitable assign of a legal devisee. An equitable devisee has no better mode of raising the question at law than a legal devisee. In either case there is the same imperfection in the means of raising and trying the issue. Therefore, if the Plaintiff must have an equitable title, it is enough to shew that she has such a title acquired since the will. The objection is to the Plaintiff as a suitor, and is removed directly it is proved that she belongs to the class of persons who are entitled to equitable relief. If the jurisdiction arises only from the fact that the trusts sought to be administered are de-[80]-clared by an instrument the legal validity of which is impeached, then it would exist in the case of other instruments as well as wills, for instance, in the case of a disentailing deed declaring trusts, the legal validity of which is disputed by the heir in tail.

As to the allegation of the Defendant's title, it is sufficient for the purpose of the suit. It is not necessary for the Plaintiff to prove that the Defendant is the heir. There never is an inquiry directed at the hearing whether the Defendant to such a suit is the testator's heir. In Mitford on Pleading, p. 53, it is laid down that a bill to perpetuate testimony "should state that the Defendant has, or that he pretends to have, or that he claims, an interest to contest the title of the Plaintiff;" and in page 160, "The Plaintiff must, by his bill, shew some claim of interest in the Defendant in the subject of the suit, which can make him liable to the Plaintiff's demands." The Defendant cannot claim to be heir and at the same time object that she is not the person to try the issue; nor could more than one such claimant be made a party to this bill.

The proceedings in Ireland do not affect this suit.

THE VICE-CHANCELLOR. They could not be pleaded in bar to this bill.

Mr. Russell, Q.C., in reply, referred to the forms of decrees in these suits given in Seton on Decrees, p. 82, all of which contain a direction that the trusts of the will should be performed. [THE VICE-CHANCELLOR. Those are some forms; but there are undoubtedly some others which differ from them in that respect.] The Court had not, until lately, the power of making a merely declaratory decree. [THE VICECHANCELLOR. Lord Cottenham, in Grove v. Bastard (2 Ph. 622), says that the Court had such power" in effect " [81] in this case.] As to the statement of the Defendant's character, Vice-Chancellor Shadwell, in Hammond v. Messenger (9 Sim. 335), says that "a statement that a party alleges a thing to be so and so, cannot be considered a positive statement that the thing is so and so." [The Vice-Chancellor referred to Dalton v. Hayter (7 Beav. 313), where a charge, that a Defendant had no interest under certain deeds, but that he made some claim to be interested in the estates which were the subject of the suit, the nature of which claim he ought to set forth, was held to be sufficient to prevent a demurrer by him. (See also Plumbe v. Plume, 4 Y. & C. Exch. 345).]

The Vice-Chancellor reserved his judgment.
Dec. 5. THE VICE-CHANCELLOR Sir W. PAGE WOOD.

The bill in this case

is filed by a lady of the name of Jane Stratford Boyse, setting forth the will of Cæsar Colclough, under which she is the devisee in fee of his real estate; and stating that, subsequently to his death, she, upon her marriage with her present husband, executed a settlement by which the property which she took by that devise was conveyed in fee-simple to certain trustees, who are named as Defendants in the bill, in trust, among other things, for her separate use, with other ultimate trusts; and further stating that a person claiming to be heir at law of the testator has taken proceedings in Ireland for the purpose of affecting the validity of this will by a bill filed in the Court of Chancery in Ireland; and that an issue has been directed under these proceedings in Ireland, and that the result of that issue has been a verdict against the will and in favour of the heir, with respect to the property there in question the Irish estates-and that a new trial has been moved for by the Plaintiff, which has [82] been refused; and that there is an appeal from the order refusing the new trial, and from the decree of the Court, which declared the invalidity of the will, and that such appeal is now pending in the House of Lords. The bill then proceeds to state that the trustees, in consequence of the claim set up by the heir at law, are unable to act in the trusts of the indenture of settlement, and prays that the will may be established, and for a declaration that the property comprised in the indenture of settlement is now properly subject to the trusts of that indenture.

A general demurrer has been put in to this bill by the heiress at law of the testator, who is one of the Defendants; and this demurrer has been rested chiefly on the part of the Defendant demurring on the ground that a bill will not lie in this Court for the purpose of establishing the will of a testator at the instance of a party who takes the legal estate under the devise.

Other questions independent of that have been suggested in argument on the part of the Plaintiff in supporting the bill. Those other questions I will refer to presently; but I confess that I should have found considerable difficulty in supporting the bill upon the other grounds that have been so suggested. Therefore, it has become necessary for me to consider the general question whether or not a bill can be maintained by a party taking the legal estate by devise for the purpose of establishing the will against the testator's heir at law. In making this inquiry I have found it necessary to go back to a great number of the earlier authorities, and I have had considerable difficulty in obtaining any very clear light on the subject as to the origin of the jurisdiction in establishing a will in any case against the heir at law. As far as I can at all trace it back, this jurisdiction seems to have arisen in some measure originally from the necessity of trying [83] all questions on devises, except on devises of customary estate in this Court; because, previously to the Statute of Devises (32 Hen. 8, c. 1, A.D. 1540, explained by 34 & 35 Hen. 8, c. 5), unless the lands were devisable by custom, the devise could only take effect by means of a feoffment to the uses of the testator's will, and the question then would necessarily, in all cases, bring the parties entitled by devise and the heir at law into conflict before this jurisdiction.

What took place after the Statute of Devises had passed, and in the interval between that statute and the Statute of Frauds (29 Car. 2, c. 3, A.D. 1677), which required that a will of real estate should be attested by three witnesses, seems to be by no means clear; but there appear to have been instances for which I am indebted to Mr. Monro, by whom they have been collected in a work of great research with reference to the earlier decrees of the Court-in which the Court formerly took upon itself to determine the validity of wills; that, however, is a course which unquestionably now, especially since the case of Kerrick v. Bransby (1) in the House of Lords, is not the course of this Court. The proceeding in such case was by inquiry before this Court; and I find two or three instances of decrees of this description collected in this work which is compiled by Mr. Monro. I find

(1) 7 Bro. P. C. 437, A.D. 1727, March 12. In this case it was held, reversing the decree of Lord Chancellor Macclesfield of the 14th of November 1718, that a will cannot be set aside in equity for fraud or imposition; because, if of personal estate, it may be set aside in the Ecclesiastical Court; and if of real estate, it may be set aside at law on the issue devisavit vel non.

instances of references to the Master, or one or more Masters of the Court, to inquire into the validity or invalidity of wills. There is one instance in the registrar's book, 1573, folio 7: "Where the matter at variance between the said parties was committed to the hearing, order and final determina-[84]-tion of Thomas Wotten, Esq., forasmuch as the said Mr. Wotten hath this day certified to this Court that, in his opinion, the whole of the cause in question resteth only upon the validity or invalidity of a will supposed to have been made by John Lucas, deceased." It is there ordered: "That the consideration of the said will be referred to Mr. Vaughan and Mr. Dr. Yale, two of the Masters of this Court, and they thereof to make report of the validity or invalidity of the same." There appear to be several cases of a similar description. That is the particular case of the validity of one will which was referred to the Master to determine.

There is another case in the same registrar's book, 1573, folio 208, where a question arose between parties claiming under two different wills, and it is thus entered: "Upon the hearing of the matter in variance between the said parties there were exhibited in this Court two several wills, pretended by either side to be the true will of Henry Hatche, late of Faversham, deceased; and for that this Court cannot well proceed further in the said cause without understanding which is the true willl-it is ordered that the consideration of the said two wills be referred to Mr. Dr. Harvye, Mr. Dr. Clarke and Mr. Dr. Hamonde, Masters of this Court (so that neither of them have been counsel in the cause on either side); they three, by all good ways and means they can, to gather out by proofs which of these two wills is the very true will indeed of the said Hatche; and they thereof to inform this Court in writing." That course of proceeding seems to have been taken frequently previously to the Statute of Frauds. Since that statute, in some manner or other, which I have taken some pains to ascertain, but have yet been unable to trace, this Court seems to have adopted the course of referring the question to the Courts of law.

I should state, however, that a little before the Statute [85] of Frauds the Court of Chancery seems to have departed from this mode of trying the will in its own forum, and adopted by preference the practice of referring the question to a Court of law, and still retaining the cause. There is a case which I find referred to in Mr. Spence's book on the Equitable Jurisdiction of the Court of Chancery (vol. 1, pp. 701, 702, n. d.), but there is a slight mistake in the reference which he makes to the registrar's book. The case occurred in the time of James 1st, and is to be found in the registrar's book, B. 1604, folio 944. Mr. Spence refers to folio 941. The entry there is as follows:-" "Whereas motion was this present day made by Mr. Thomas Creve, being of the Defendants' counsel, that albeit the Defendants do not seek to alter the long possession specified in the order made the 1st day of May last, but are content the same shall still continue until the Court shall give other order, yet since it appeareth by the said order that the question upon the hearing will be whether a will or no will, which is merely triable by the law: It was most humbly desired that a special issue might be joined and tried upon that point for the better informing of the Court upon the hearing; which this Court thinks reasonable. It is therefore ordered that, if the said Plaintiff shall not on Tuesday next shew unto this Court good cause to the contrary, then the said parties shall join and try such issue as aforesaid. Provided always that no judgment shall be had upon the same trial, neither shall the Plaintiff be interrupted in his said possession until the said hearing or other order shall be taken by this Court touching the same." So that, as early as the time of James 1st, it appears to have been thought by the Court that the proper mode of trying the validity or invalidity of the will was by a trial at law; but, nevertheless, the case being sent to law to be tried, the Court afterwards dealt with it as justice seemed to require.

Now with regard to the proceeding to establish wills [86] against the heir at law, there certainly is very considerable obscurity as to the mode in which that jurisdiction arises. The establishing of a will is clearly a very different thing from either, on the one hand, trying the validity or invalidity of the will incidentally, in consequence of there being outstanding legal estates, in which case the proper course would no doubt be to get rid of the obstacle of an outstanding estate in order to have the merits tried,

but to try the question by an action, not by means of an issue; or again, on the other hand, it is very different from the course of perpetuating testimony in respect of a will, the effect of which is materially different in every way, as regards the heir at law, from establishing the will against him; for the heir at law, under a decree establishing a will, is so bound, with respect to its validity, that all the authorities state that a perpetual injunction would issue against him in case of his making any attempt, after such decree, to impeach the will.

Then the question arises, how the Court could have acquired this species of jurisdiction to establish a will. I should have been very glad if I could have found any distinct authority upon this question; but the jurisdiction seems silently, in some mode or other, to have been introduced; and unquestionably it is found most frequently, but by no means, as I shall presently shew, solely, to have been exercised in cases where the trusts of a will had to be carried into effect under the direction of the Court. Now the practice of having the will established, when any trust had to be carried into effect under the direction of the Court, seems to have arisen extremely early; and one of the earliest reported instances in which the Court appears to have thought that it was absolutely necessary to do it as a general rule, although the particular case itself was an exception, seems to have been the case of Harris v. Ingledew (3 P. Wms. 91), [87] where the objection was raised in consequence of the heir at law not having been a party to the suit to carry into effect the trusts of the will. In the case of Harris v. Ingledew this point was raised: there was a will devising lands to different persons, charged with the payment of debts; and the bill was brought by the simple contract creditors to have the trusts of the will for payment of the debts performed. Then "the widow of John Ingledew, the brother, and her son, being the nephew and heir of the first testator, joined in a sale of several of these lands to several persons for valuable considerations; and the simple contract creditors now bringing their bill against the several devisees of the premises, and also against the purchasers, in order that the several lands might be sold for the satisfaction of their demands, the will was proved; but John Ingledew, the nephew and heir of the first testator, was not made a Defendant to the bill; upon which it was insisted that the heir at law ought to be a party, it being ever done in like cases; that the bill being for a sale, if the heir was before the Court, the evidence to the will would be perpetuated."

Now I observe here that, all through a great many of the early cases, there is considerable confusion between the simple case of perpetuating testimony, and the case of establishing a will. In this case of Harris v. Ingledew, if the heir at law had been before the Court, the bill would have been to establish the will, and not a simple bill to perpetuate testimony. But it was argued "that the bill being for a sale, if the heir was before the Court, the evidence to the will would be perpetuated; but in case he should not be a party, a decree for sale of the estate would be vain, for no one would buy, at least he would not give half the value for it; whereas, should the heir be a Defendant, this will charging the lands with payment of the debts, the heir would be decreed to join; that the general [88] practice, in cases where a will of land is proved, is to declare the will well proved, that is, well proved against the heir. It will be found in a variety of cases that the common expression with reference to bills for perpetuating testimony was, that the will was called a will "proved in equity." This question of the establishment of wills against the heir appears to have been mixed up with that of bills for perpetuating testimony, although the two courses seem to have been essentially different, and the relief differed in every respect-it being, in fact, relief in the one case against the heir, and in the other case, there being no relief against the heir at all, except that he is simply brought before the Court in order that he may be bound thereafter, so far as that the evidence of the witnesses may be read against him in another case in which the will is disputed. The argument continues: the custom is "to declare the will well proved, that is well proved against the heir; for it cannot be said to be proved against anyone else. And suppose these lands should be sold by the devisees, pursuant to the decree, and afterwards the heir should sue for the estate, and recover; here would be a purchaser under a decree, evicted, notwithstanding, for want of the Plaintiff's having made the heir a party; and yet the Court ought not to suffer anything to happen to the prejudice of those who are to be purchasers under its decrees."

Now several authorities can be cited, but the one most usually cited is that of Fearne's Posthumous Works, p. 234, to shew that it was the practice frequently, for parties who wished to make title to the estate, to present and prove the will in Chancery by perpetuating testimony, and that was called proving the will in Chancery. And Blackstone, in his 3d volume, p. 450, referring to that, amongst other things, in his short disquisition on the Court of Chancery, says that this species of bill is the bill commonly [89] adopted by the parties in possession when the evidence is perpetuated, and that "this is what is usually meant by proving a will in Chancery."

But here, nevertheless, in the case of Harris v. Ingledew (3 P. Wms. 91), the parties seem to have entertained the notion that it was competent for them to file a bill to perpetuate testimony, and to do that alone; and that it was also competent, when the will was proved, to have a bill so framed that it should be declared well proved, and well proved against the heir; and they insisted that the Court ought to do this, and ought not to suffer anything to happen to the prejudice of those who were purchasers under the decree. The Master of the Rolls (Sir Joseph Jekyll) there says, "This seems a material objection; for since the sale of the estate must affect all the devisees in proportion, and as the estate would not, without the heir being a party to the decree, sell for near the value, this might be a wrong to all the devisees, and occasion more of their lands to be sold than would perhaps be otherwise necessary. With regard to what has been urged, that, where lands are conveyed by deed to trustees to sell, the heir, unless entitled to the surplus, need not be a party to a bill that prays a sale, it must be observed that the proof of a will is attended with more solemnity than that of a deed, the former being supposed to be made when the testator is in extremis, and therefore in equity it is necessary to prove the sanity, which is all presumed in the case of the latter; also a deed may be proved viva voce at the hearing, but no such order can be made for proving a will; the reason is because here more is to be proved than barely the execution; for instance, you must prove that there were three witnesses, and that these subscribed their names in the presence of the testator." Then the report continues: "But, after all, consi-[90]-dering that William Ingledew, the first testator, had been dead ever since December 1719, and that the freehold lands had been quietly enjoyed under the will, His Honour did decree a sale without the heir being a party; but said he would stop passing the decree in case the Defendant's counsel should be able to shew where, in the like instance, the Court ever refused to make a decree without making the heir a party."

Since that time, no doubt, it has been established that the heir shall in all cases be a party to such a suit; but it was put in this case upon the ground, which appears to me to be the true ground, namely, that the Court, in making a decree, will do the best it can for the purchasers. The Court never does guarantee a title to purchasers; but, in making a decree for sale, the Court says it will do the best it can, and if the heir be brought here it will establish the will against him.

In a case of Colton v. Wilson (3 P. Wms. 190), reported in the same volume, the objection was raised, not as in Harris v. Ingledew by some other parties, but by a purchaser who had made a purchase out of Court, under a trust for sale in a will, and then resisted the purchase because the will had not been, as he called it, "proved in equity." The testator there had devised his estates in trust to sell. The estates had been sold to the Defendant, Wilson, by the trustees, and the creditors of the testator brought their bill against the Defendant, Wilson, to compel him to complete his purchase, and to pay his purchase-money, to the end that they might be satisfied their debts. The Defendant, Wilson, then said he believed that Henry Taylor, the testator, did duly execute his will and devise the premises to be sold, and the Defendant had offered to complete his purchase, all proper parties joining; but he said "the will was proved in this Court to be duly executed, but the heir, who was beyond sea in the East India Company's [91] service, though made a party Defendant, yet had not appeared to or answered the bill; and the Defendant, Wilson, though he was at first willing to purchase the premises, and had entered on good part thereof, yet other part of this estate on which he had not entered, being much out of repair, the tenants racked, and the rents likely to fall, he was now desirous of being discharged from his purchase;" and he insisted that "this being in the case of a will not proved