persons to deal at arm's length, if they both understand that they are so dealing, and it permits them to be silent as to matters known only to one of them, if no inquiries are made; but it does not permit any artifice to be added to silence, in order to conceal a fact material to the contract. Thus, concealment, or suppressio veri, which amounts to a fraud in the sense of a court of equity, and for which it will grant relief, is defined to be the non-disclosure of those facts and circumstances which one party is under some legal or equitable obligation to communicate to the other, and which the latter has a right, not merely in foro conscientiæ, sed juris et de jure, to know. Thus if a stranger discover a valuable mine or spring, or any other thing or circumstances, on or in connection with land of another, he may be silent, and purchase the land; but if he use any art to prevent a knowledge of the fact from coming to the owner, equity will rescind the contract, and a very slight act will convert innocent silence into fraudulent concealment.4 But if one of the parties employs an agent to contract, and the agent, knowing a material fact, is silent or conceals it, his principal will not be affected with the knowledge, nor will the contract be vitiated.5

2

§ 181. Courts of equity will not only interfere in cases of fraud, to set aside acts done, but they will also, if acts have by fraud been prevented from being done, interfere, and treat

1 Young v. Bumpass, 1 Freem. Ch. 241; 1 Story's Eq. Jur. § 207; Irvine v. Kirkpatrick, 3 Eng. L. & Eq. 17; Laidlaw v. Organ, 2 Wheat.

178.

2 Fox v. Mackreth, 2 Bro. Ch. 400; 2 Cox, 300; 1 Lead. Ca. Eq. 188; Harris v. Tyson, 24 Pa. St. 359; Earl of Bath, &c., Case, 3 Ch. Ca. 56, 74, 103, 104; Mathews v. Bliss, 22 Pick. 48.

8 Bowman v. Bates, 2 Bibb, 47.

4 Turner v. Harvey, Jac. 169; Laidlaw v. Organ, 2 Wheat. 178; Torrey v. Buck, 1 Green, Ch. 380; Mathews v. Bliss, 22 Pick. 48.

Wilde v. Gibson, 1 H. L. Ca. 605, reversing same case, 2 You. & Col.

the case exactly as if the acts had been done; and this they will do, by converting the party who has committed the fraud, and profited by it, into a trustee for the party in whose favor the act would otherwise have been done.1 Thus, if a person by his promises, or by any fraudulent conduct, with a view to his own profit, prevents a deed or will from being made in favor of a third person, and the property intended for such third person afterwards comes to him who fraudulently prevented the execution of the will or deed, he will be held to be a trustee for the person defrauded, to the extent of the interest intended for him.2 So, where the tenant in tail in remainder, fraudulently or by force, prevented the tenant in tail for life in possession from suffering a common recovery, and thereby barring the entail for the purpose of providing for other persons by will out of the estate, it was held that the tenant in tail in remainder, when the estate came to him, was a trustee, and the court took care that the estate should go precisely as if the common recovery had been suffered, although the tenant in tail was a married woman, and the fraud had been committed by her husband, and she was not privy to it. And where issue in tail prevented his father, tenant in tail, from suffering a recovery, by promising to provide for younger children, in favor of whom the recovery was to be suffered, equity converted the tenant in tail into a trustee for the younger children. And where a person fraudulently intercepts a gift intended for another, by promising to hand it over if it is left to him, equity will compel an execu

1 Middleton v. Middleton, 1 Jac. & W. 96; Reech v. Kennegall, 1 Ves. 123; Oldham v. Litchford, 2 Vern. 506; Dutton v. Poole, 2 Lev. 211; Mestaer v. Gillespie, 11 Ves. 638, and cases cited; Jenkins v. Edridge, 3 Story, 181. See remarks in McGowan v. McGowan, 14 Gray, 119; Morey v. Herrick, 18 Pa. St. 128; Wallgrave v. Tebbs, 2 K. & J. 313; Dixon v. Olmius, 1 Cox, Ch. 414.

2 Ibid.; Church v. Ruland, 64 Pa. St. 432.

3 Luttrell v. Olmius, and Waltham's Case, cited 11 Ves. 638; and 14 Ves. 290.

4 Jones v. McKee, 6 Barr, 428; Devenish v. Baines, Prec. Ch. 4.

tion of the promise, by converting such person into a trustee.1 So, if devisees or heirs prevent a testator from charging his estate with annuities or legacies, by saying that it is not worth while to put them in the will, and that they will pay them, they will be trustees for such intended annuitants or legatees. So, if an executor prevents a gift or legacy from being given to one, by promising to pay it as if inserted in the will, he will be a trustee. So, where a testator held a note against his father, which he intended to give up in his will, the residuary legatee promising that she would surrender the note, equity held her to be a trustee. So, where one fraudulently procured a deed to be made to herself, instead of to another.5 But there must be some actual fraud in procuring a deed or devise to one's self: the mere breach of a promise to convey is not enough. So, if an heir fraudulently, or through ignorance, procure a will to be revoked, so that the estate comes to him, he will be a trustee; as, where A. had sold a part of his estate, and the purchaser desired a fine to be levied, B., his heir, acting as his attorney, advised a fine to be levied of his whole estate, whereby A.'s will was revoked, and the estate descended to B.; the devisee under the will called upon B. to hold the property, as his trustee, and he was so held by the court; Lord Eldon saying, "You,

1 Hoge v. Hoge, 1 Watts, 213; Devenish v. Baines, Prec. Ch. 4; Church v. Ruland, 64 Pa. St. 432; Dowd v. Tucker, 41 Conn. 198; Williams v. Vreeland, 29 N. J. Eq. 417.

2 Chamberlain v. Chamberlain, 2 Freem. 34; Oldham v. Litchford, 2 Vern. 506; Mestaer v. Gillespie, 11 Ves. 638; Huguenin v. Baseley, 14 Ves. 290; Griffin v. Nanson, 4 Ves. 344; Hoge ". Hoge, 1 Watts, 213; Jones v. McKee, 3 Barr, 496, and 4 Barr, 428; Norris v. Frazer, L. R. 15 Eq. 329; McCormick v. Grogan, L. R. 4 H. L. 82.

3 Thynn v. Thynn, 1 Vern. 296; Reach v. Kennigate, Amb. 67; Barrow v. Greenbough, 3 Ves. 152; Chamberlain v. Agar, 2 V. & B. 250; Podmore v. Gunning, 7 Sm. 644.

4 Richardson v. Adams, 10 Yerg. 273; Jones v. McKee, 3 Barr, 496. 5 Miller v. Pearce, 6 Watts & S. 97.

Hoge v. Hoge, 1 Watts, 213.

who have been wanting in what I conceive to be the duty of an attorney, if it happens that you get an advantage by that neglect, you shall not hold that advantage, but you shall be trustee of the property for the benefit of that person who would have been entitled to it, if you had known what, as an attorney, you ought to have known; and, not knowing it, you shall not take advantage of your own ignorance." In such cases it has been held that mere promises are not enough, that there must be some proof of a fraudulent intent or purpose, to create a trust; it is also held that such trust does not follow the property, but is only an agreement which equity will enforce.2

§ 182. While a court of equity will thus create a trust where a person has by fraud prevented a will from being made in favor of another, it has no jurisdiction to prevent the probate of, or to set aside, a will fraudulently procured. Ecclesiastical and common-law courts in England, and probate courts with the common-law courts in the United States, alone have jurisdiction over wills. Thus, until within a short period all wills in England were first presented to the ecclesiastical courts, and they were there allowed or disallowed according to the evidence. If they were allowed, the final judgment allowing them was conclusive upon the personalty until such judgment was reversed or annulled. The validity of such will, however, so far as real estate was concerned, was tried in the courts of common law, as often as the title to the separate parcels of land was in controversy. Whenever in the prosecution or defence of a real action such will of real estate was given in evidence, not only its execution was tried, but its validity, as whether it was obtained by

1 Bulkley v. Wilford, 2 Cl. & Fin. 177; 8 Bligh (N. s.), 11; Segrave v. Kirwan, Beat. 157; Nanney v. Williams, 22 Beav. 542. See Mix v. King. 55 Ill. 434.

2 Bedilian v. Seaton, 3 Wall. Jr. 280.

undue influence or fraud, or whether the testator was of sound mind. Courts of equity in a few early cases assumed jurisdiction to set aside wills procured by fraud,1 but it is now well settled that they will not interfere, but that courts of common law have exclusive jurisdiction: nor will they interfere to set aside the judgment or probate of a will procured by fraud.2 To set aside such a judgment, proceedings must be had in the nature of proceedings for a new trial in the court in which such judgment or decree was passed. The extent to which a court of equity will go, in correcting a fraud perpetrated in relation to a will, is to give relief where fraud has prevented a will from being made, or where a fraud has been practised upon the legatee, as where a name is inserted fraudulently in a will in place of the intended devisee or legatee, or where the revocation of a will has been procured or prevented by fraud, or where there is a gift to executors under such circumstances that it ought to be a trust for relations, or where a legatee promises the testator that he will hand over the legacy to a third person.5 In all these cases the will itself is established, but certain other collateral things

1 Maundy v. Maundy, 1 Ch. R. 66; Well v. Thornagh, Pr. Ch. 123; Goss v. Tracy, 1 P. Wms. 287; 2 Vern. 700.

2 Roberts v. Wynne, 1 Ch. R. 125; Archer v. Mosse, 2 Vern. 8; Herbert v. Lownes, 1 Ch. R. 13; Thynn v. Thynn, 1 Vern. 296; Devenish v. Baines, 1 Pr. Ch. 3; Barnesley v. Powell, 1 Ves. 287; Marriott v. Marriott, Str. 666; Plume v. Beale, 1 P. Wms. 388; Rockwood v. Rockwood, 1 Leon. 192, Cro. Eliz. 163; Dutton v. Poole, 1 Vent. 318; Beringer v. Beringer, 26 Car. II.; Chamberlain v. Chamberlain, 2 Freem. 34; Leicester v. Foxcroft, Gilb. 11; Ketrick v. Barnsby, 3 Bro. P. C. 358; Webb v. Claverden, 2 Atk. 424; Bennett v. Vade, ib. 324; Anon., 3 Atk. 17; Sheffield v. Buckingham, 1 Atk. 628; Allen v. Macpherson, 5 Beav. 469; 1 Phill. 133; 1 H. L. Ca. 191; Murray v. Murphy, 39 Miss. 214. 3 Waters v. Stickney, 12 Allen, 1.

4 Bulkley v. Wilford, 2 Cl. & Fin. 177; 8 Bligh (N. s.), 11; Segrave v. Kirwan, Beat. 157; Nanney v. Williams, 22 Beav. 452; Dowd v. Tucker, 41 Conn. 198; Williams v. Vreeland, 29 N. J. Eq. 417.

5 Kennell v. Abbott, 4 Ves. 802; Marriott v. Marriott, Str. 666, cited Gilbert, 203, 209; Williams v. Fitch, 18 N. Y. 546; 7 Sim. 644; 1 Watts, 163; Church v. Ruland, 64 Pa. St. 432.