are decreed growing out of the manner in which the will was procured. In New York, New Jersey, and South Carolina, the old English practice is followed, and wills must be proved whenever they are used to establish or defeat the title to real estate, nor has a court of equity jurisdiction to set them aside. This rule has been modified in New York so far that when the title of real estate depends upon a will, the validity of which is doubted, and the parties are not in possession of the real estate, nor in such a position that a real action can be brought, or if there is any technical reason why a real action cannot be sustained, a court of equity will take jurisdiction to prevent a failure of justice.2 In nearly all the other States the judgments of the courts of probate allowing a will are conclusive upon all the world, both as to real and personal estate. In all actions at law involving title under such wills, it is only necessary to produce the judgment of the probate court allowing them. Courts of equity have no jurisdiction to set aside such wills for fraud, nor can they set aside the judgments of the probate court allowing them. If, however, a will is probated by accident or mistake, or the probate is procured by fraud, the judgment may be reversed or modified, by proceedings in the same court in the nature of a petition for a review or for a new trial. upon the statutes of the several their several courts of probate.

This, however, may depend States giving jurisdiction to While courts of equity will

1 Marriott v. Marriott, Str. & Gil. ut supra.

2 Brady v. McCosker, 1 Comst. 214; Clarke v. Sawyer, 2 Com. 498. 8 Gould v. Gould, 3 Story, 516; Fouvergne v. New Orleans, 18 How. 470; Gaines v. Chew, 2 How. 645; Tarver v. Tarver, 9 Pet. 180; Adams v. Adams, 22 Vt. 50; Cotton v. Ross, 1 Paige, 396; Muir v. Trustees, 3 Barb. Ch. 477; Hamberlin v. Tenny, 7 How. (Miss.) 143; Lyne v. Guardian, 1 Miss. 410; Hunter's Will, 6 Ohio, 499; Watson v. Bothwell, 11 Ala. 653; Johnson v. Glasscock, 2 Ala. 233; Hunt v. Hamilton, 9 Dana, 90; McDowall v. Peyton, 2 Des. 313; Howell v. Whitchurch, 4 Heyw. 49; Burrows v. Ragland, 6 Humph. 481; Blue v. Patterson, 1 Dev. & Bat. Eq. 459; Trexler v. Miller, 6 Ired. Eq. 248.

4 Waters v. Stickney, 12 Allen, 1.

not interfere to set aside wills procured by fraud, or to set aside the probate of those procured by fraud, they will not interfere in favor of the fraudulent party to enable him to establish any rights under the will. As a general rule neither courts of equity nor of common law will take notice of a will for any purpose unless it has been proved in the courts of probate having jurisdiction over such matters.2

§ 183. Another instance of a constructive trust arising from fraud in relation to deeds or wills, is where a party has suppressed or destroyed a deed or other instrument of title. Every one is entitled to aid from the judicial tribunals in all cases of fraud, and if a defendant has fraudulently suppressed or destroyed the evidence of a man's title, and is in possession of the property himself, he ought to be declared a trustee for the rightful owner under the suppressed paper; and if a deed or will is destroyed or suppressed, a court of equity can give relief. There seems to be no difficulty in this matter so far as relates to deeds, nor so far as relates to wills of real estate in those jurisdictions where a will must be proved in court in every instance where it is necessary to the title of real estate; but in jurisdictions where a will cannot be noticed

1 Nelson v. Oldfield, 2 Vern. 76.

2 Price v. Dewhurst, 4 My. & Cr. 76, 80, 81; Gaines v. Chew, 2 How. 645, 646.

8 Bates v. Heard, Toth. 66; 1 Dick. 4; Tucker v. Phipps, 3 Atk. 360; Hayne v. Hayne, 1 Dick. 18; Eyton v. Eyton, 2 Vern. 280, Pr. Ch. 116; Dalston v. Coatsworth, 1 P. Wms. 731; Woodroff v. Burton, 1 P. Wms. 734; Saltern v. Melhuish, Amb. 249; Cowper v. Cowper, 2 P. Wms. 748; Gartside v. Radcliffe, 1 Ch. Ca. 292; Hunt v. Mathews, 1 Vern. 408; Wardour v Beresford, 1 Vern. 452; Downes v. Jennings, 32 Beav. 290; Sansom v. Rumsey, 2 Vern. 561; 1 P. Wms. 733; Hampden v. Hampden, 3 Bro. P. C. 550; 1 P. Wms. 733; Spencer v. Smith, 1 N. C. C. 75; Middleton v. Middleton, 1 J. & W. 99; Wood v. Abrey, 3 Mod. 423; Floyer v. Sherrard, Amb. 18; Coles v. Trecothick, 9 Ves. 246; Law v. Barchard, 8 Ves. 133; White v. Damon, 7 Ves. 35; Moth v. Atwood, 5 Ves. 845; Stephens v. Bateman, 1 Bro. Ch. 22; Griffith v. Spratley, 2 Bro. Ch. 179. 4 Ward v. Webber, 1 Wash. Va. 274.

by other courts until it is first proved in a court of probate, there is a difficulty in proceeding in equity for fraud in suppressing it, except by a bill of discovery of evidence to use in the courts of probate in proving the will. Accordingly it has been determined in some States that a will cannot be acted upon in courts of equity, although lost, destroyed, or suppressed, until it is first proved in a probate court.1 In other States, courts of equity, in cases of suppressed or spoliated wills, have taken jurisdiction in odium spoliatoris, and have allowed such will to be proved and have carried its provisions into effect, as a court of probate would have done if the will had been produced and regularly administered.2

§ 184. If a party in ignorance and mistake of his rights and interests execute a conveyance, although no fraud is practised upon him, a court of equity will relieve against the instrument; for it is against good conscience to take advantage of one's ignorance to obtain his property. Thus, if an heir, in ignorance of the value of his inheritance, or in ignorance that some legacies or devises had lapsed,5 should convey

1 Morningstar v. Selby, 15 Ohio, 345; Gaines v. Chew, 2 How. 345; Gaines v. Hennen, 24 How. 553.

2 Bailey v. Stiles, 1 Green, Ch. 220; Allison v. Allison, 7 Dana, 90; Legare v. Ashe, 1 Bay, 464; Meade v. Langdon, cited 22 Vt. 59; Buchanan v. Matlock, 8 Humph. 390. In New York the matter is regulated by statute, and courts of equity or the Supreme Court has exclusive jurisdiction in case of a lost or spoliated will. Bowen v. Idley, 6 Paige, 46; Bulkley v. Redmond, 2 Brad. Sur. 281.

8 Bingham v. Bingham, 1 Ves. 126; Ramsden v. Hylton, 2 Ves. 394; Turner v. Turner, 2 Ch. R. 81; Dunnage v. White, 1 Swans. 137; Naylor v. Wynch, 1 S. & S. 564; Evans v. Llewellyn, 2 Bro. Ch. 150; 1 Cox, 333; Gossmour v. Pigge, 8 Jur. 526; McCarthy v. Decaix, 2 R. & M. 614; Huguenin v. Baseley, 14 Ves. 273; Hore v. Beecher, 12 Sim. 465; Marshall v. Collett, 1 Y. & Col. Exch. 238; Midland Great Western Railway v. Johnson, 6 H. L. Ca. 811.

▲ Beard v. Campbell, 2 A. K. Marsh. 125; Tyler v. Black, 13 How.

his interest for an inadequate consideration, equity would convert the purchaser into a trustee. And if the purchaser should have full knowledge, or should stand in any confidential relation, or should practise the slightest art to mislead or conceal, the equities would of course be much stronger against the transaction; but these circumstances are not necessary to avoid the conveyance, for relief will be granted where both parties are in a mutual state of ignorance, or are laboring under the same mistake.2 It is to be observed, however, that the ignorance or mistake which entitles a party to relief must be as to some matter of fact; and that mistake or ignorance of the law, or of the consequences that will follow from the conveyance, will not entitle a party to relief. This rule is established by reason of the great danger of abuse that would arise if parties were allowed to reclaim their property upon allegations that they were ignorant of the law, or mistook the consequences of their acts. Thus if a party has full knowledge of all the facts and intends to do the acts, or execute the instruments in question in the form in which they are executed, he cannot have relief because he was ignorant of or mistook the law, or because the consequences which legally and naturally follow from the transaction are different

1 Gossmour v. Pigge, 13 L. J. Ch. 322; Tyler v. Black, 13 How. 231; McCarthy v. Decaix, 2 R. & M. 222; Cocking v. Pratt, 1 Ves. 400.

2 Ibid.; Lansdowne v. Lansdowne, 2 J. & W. 205; Mose. 364; Willan v. Willan, 16 Ves. 72.

8 Marshall v. Collett, 1 Y. & C. Exch. 238; Midland Great Western Railway v. Johnson, 6 H. L. Ca. 811; Hunt v. Rousmaniere, 1 Pet. 1; Brown v. Ingham, 1 Bro. Ch. 92; Pullen v. Ready, 2 Atk. 591; Magniac v. Thompson, 2 Wall. Jr. 209; Campbell v. Carter, 14 Ill. 286; Hall v. Read, 2 Barb. Ch. 503; Brown v. Armistead, 6 Rand. 594; Hinchman v. Emans, Saxt. 100; Freeman v. Cook, 6 Ired. Eq. 378; Gunter v. Thomas, 1 Ired. Eq. 199; Crofts v. Middleton, 2 K. & J. 194; Wintermute v. Snyder, 2 Green, Ch. 498; Farley v. Bryant, 32 Me. 474; Fergerson v. Fergerson, 1 Ga. Dec. 135; Freeman v. Curtis, 51 Me. 140.

4 Bilbie v. Lumley, 2 East, 472; Lyon v. Richmond, 2 Johns. Ch. 51; Shotwell v. Murray, 1 Johns. Ch. 512; Storrs v. Barker, 6 Johns. Ch. 169; Proctor v. Thrall, 22 Vt. 262.

from what he expected.1 But if there is a mistake in the instrument itself, and it contains what was not agreed or intended, or does not contain all that was agreed and intended, to be in the writing, equity will give relief. And if there are any other ingredients in the case, as if there is joined to a party's ignorance or mistake of the law, some practice upon him to lead him into the bargain, or if the other party, knowing his ignorance or mistake, still suffers him to go on without information, equity will give relief. If there are any exceptions to the rule that ignorance or mistake of the law is not a ground for relief, they are few in number, and have something peculiar in their character, which calls in other elements of equity, or they stand upon some urgent pressure of circumstances.5

§ 185. When a conveyance is made to compromise claims, which the parties deem doubtful, and especially if the conveyance has for its object the settlement of family controversies, courts will support it if possible, although founded in

1 Storrs v. Barker, 6 Johns. Ch. 169; Lyon v. Saunders, 23 Miss. 124; Shafer v. Davis, 13 Ill. 395; Emmett v. Dewhirst, 8 Eng. L. & Eq. 83; Hunt v. Rousmaniere, 1 Pet. 1; Farley v. Bryant, 32 Me. 474; Mellish v. Robertson, 25 Vt. 608; Gilbert v. Gilbert, 9 Barb. 532; Arthur v. Arthur, 10 Barb. 9; Freeman v. Curtis, 51 Me. 140.

2 Heacock v. Fly, 14 Pa. St. 541; Larkins v. Biddle, 21 Ala. 256; Wyche v. Green, 11 Ga. 169; 16 Ga. 49; Moser v. Lebenguth, 2 Rawle, 428; Fitzgerald v. Peck, 4 Litt. 127.

31 Story's Eq. Jur. § 133.

Cook v. Nathan, 16 Barb. 342; Langstaffe v. Fenwick, 10 Ves. 405 5 State v. Paup, 13 Ark. 135; Hunt v. Rousmaniere, 1 Pet. 1; 1 Story's Eq. Jur. §§ 116, 137.

6 Brown v. Pring, 1 Ves. 407; Cann v. Cann, 1 P. Wms. 727; Naylor v. Winch, 1 Sim. & S. 555; Goodman v. Sayers, 2 J. & W. 263; Pickering v. Pickering, 2 Beav. 91; Stewart v. Stewart, 6 Cl. & Fin. 699; Gibbons v. Caunt, 4 Ves. 849; Neale v. Neale, 1 Keen, 672; Attorney-General v. Boucherett, 25 Beav. 116; Wiles v. Greshon, 5 De G., M. & G. 770; Bradley v. Chase, 22 Me. 511; Richardson v. Eyton, 15 Eng. L. & Eq. 51; 2 De G. M. & G. 79.

7 Currie v. Steele, 2 Sandf. 542; Stone v. Godfrey, 27 Eng. L. & Eq.