self of his proofs at the original hearing because of fraud, accident or mistake, unmixed with any fraud or negligence on his part.12

§ 1317. Admission of Will to Probate Does Not Preclude Probate Court from Admitting a Later Will.

The probate court which has admitted the will of a testator may, upon presentation to it of a later will of the same testator and after due hearing and proof, revoke its order admitting the first will and receive the later will for probate.1 The court has no power by a decree establishing one testamentary instrument to preclude the subsequent probate of a later one, never before brought to its notice. There is no reason why the probate of a will which does not express the last intentions of the testator should be held irrevocable.14 This right does not depend upon any express statute, but is a just and necessary power to be implied from the statute granting general authority to take the probate of wills and to grant administration on estates of deceased persons, and such authority may be exercised incidentally to the application for the probate of the later will.15 Such subsequent will must be proved in the probate court. A court of equity has no authority to assume the jurisdiction of the probate court and establish and execute a will never presented to the court of probate.16

73

12 Clough v. Moore, 63 N. H. 111; Knight V. Hollings, N. H. 495, 63 Atl. 38.

13 Cousens v. Advent Church, 93 Me. 292, 45 Atl. 43; Bergeron, Appeal of (Estate of Cote), 98 Me. 415, 57 Atl. 584; Waters v. Stickney, 12 Allen (Mass.) 1, 90 Am. Dec. 122; Campbell v. Logan,

2 Bradf. (N. Y.) 90; Bowen v. Johnson, 5 R. I. 112, 73 Am. Dec. 49.

14 Waters v. Stickney, 12 Allen (Mass.) 1, 12, 90 Am. Dec. 122.

15 Bowen v. Johnson, 5 R. I. 112, 119, 73 Am. Dec. 49.

16 Cousens v. Advent Church, 93 Me. 292, 45 Atl. 43; Wolcott v.

The undoubted power of a probate court to admit a subsequent will after the probate of an earlier one does not make the decrees of such court less conclusive or impair its probate jurisdiction, but in fact makes such jurisdiction more effectual and complete by enabling the court to correct mistakes and supply defects in its own decrees,17

§1318. The Same Subject: Procedure.

It is not necessary to have the probate of an earlier will set aside before the later will can be probated.18 The probate of a former will may as a matter of practice be revoked upon the mere application to the court of probate to prove or to allow to be filed and recorded a later will. All interested parties are entitled to notice, but it is held that it is not necessary that a preliminary and separate proceeding should be instituted for the purpose of revoking the probate of the former will in order to probate or file and record the later will.19 In New York the procedure is to make an application upon proper evidence under the statute authorizing the vacating, opening, modifying or setting aside of a surrogate's decree. There must be a prayer that the decree be vacated and that all persons be cited to show cause why such order should not be made. The citation must be directed not only to the heirs and next of kin who are cited to attend the probate, but also to the beneficiaries under the will, if any, who do

Wolcott, 140 Mass. 194, 3 N. E. 214.

17 Waters v. Stickney, 12 Allen (Mass.) 1, 90 Am. Dec. 122; Campbell v. Logan, 2 Bradf. (N. Y.) 90; Vance v. Upson, 64 Tex. 266.

18 Gaines v. Hennen, 24 How.

(U. S.) 553, 567, 16 L. Ed. 770; Campbell v. Logan, 2 Bradf. (N. Y.) 90; Vance v. Upson, 64 Tex. 266; Schultz v. Schultz, 10 Gratt. (Va.) 358, 60 Am. Dec. 335.

19 Bowen v. Johnson, 5 R. I. 112, 73 Am. Dec. 49.

not belong to the above classes. On the return day of the citation when the proper facts stated in the petition and affidavits are established, an order will be made setting aside the decree provided the later will be sufficiently proved to warrant its admission to probate. If the later will be not so established, the original decree will stand. The later will must be proved in the manner in which wills are ordinarily proved in the first instance and its admission to probate makes any order of revocation final. If the subsequent will can not be established, the former decree remains in full force.20

§ 1319. Courts of Equity Have No Inherent Jurisdiction in Probate Matters.

In the absence of statute, courts of equity have no jurisdiction to set aside or revoke the probate of a will for any of the reasons which might be addressed to the probate court as showing the instrument not to be the last will of the testator, such as want of testamentary capacity, lack of due execution, revocation, that the will had been procured through fraud, duress, undue influence or mistake, or the like.21 This does not mean, however, that equity will not take cognizance of causes merely because they involve the proof or validity of a will. Equity jurisdic

20 In re Hamilton's Will, 2 Con. Sur. 268, 20 N. Y. Supp. 73, 78.

21 Allen v. Macpherson, 1 H. L. Cas. 191; Webb v. Claverden, 2 Atk. 424; Carran v. O'Calligan, 125 Fed. 657, 60 C. C. A. 347; Gaines v. Fuentes, 92 U. S. 10, 23 L. Ed. 524; Mitchell v. Rogers, 40 Ark. 91; Langdon v. Blackburn, 109 Cal. 19, 41 Pac. 814; Sharp v.

Sharp, 213 Ill. 332, 72 N. E. 1058; Waters v. Waters, 225 Ill. 559, 80 N. E. 337; Medill v. Snyder, 71 Kan. 590, 81 Pac. 216; Cousens v. Advent Church, 93 Me. 292, 45 Atl. 43; Hans v. Holler, 165 Mo. 47, 65 S. W. 308; Vincent v. Vincent, 70 N. J. Eq. 272, 62 Atl. 700; Booth v. Kitchen, 7 Hun (N. Y.) 255; Blue v. Patterson, 21 N. C. 457.

tion extends to the granting of relief based upon some substantial equitable right regarding which the courts of law or of probate afford no adequate remedy.22 If the admission of a will to probate is obtained through fraud and collusion and by imposition upon the court which admitted it, equity may grant relief where the probate court is powerless to act.23 The same rule applies where the probate court acted without jurisdiction.24

In connection with the above, the distinction must be borne in mind between fraud, collusion or the like in inducing the testator to execute the particular will in question, which is matter to be presented in showing that the instrument is not in fact the last will of the decedent. and therefore not entitled to probate, and fraud, collusion and the like in securing an order of the probate court admitting the will to probate, which is a fraud and an imposition upon the court whereby the decree is secured without the merits of the cause having been heard and determined. It is because there has been no trial of the cause on its merits that the validity of the will should

22 Vaughan v. Suggs, 82 Ala. 357, 2 So. 32; Freeman v. Reagan, 26 Ark. 373; Deck v. Gerke, 12 Cal. 433, 73 Am. Dec. 555; McGowan v. Lufburrow, 82 Ga. 523, 14 Am. St. Rep. 178, 9 S. E. 427; Winslow v. Leland, 128 Ill. 304, 21 N. E. 588; Alexander v. Leakin, 72 Md. 199, 19 Atl. 532; Garton v. Botts, 73 Mo. 274; Middleton v. Middleton, 35 N. J. Eq. 115; In re Underhill, 117 N. Y. 471, 22 N. E. 1120; Finger v. Finger, 64 N. C. 183; Adams' Heirs v. Adams, 22 Vt. 50.

23 Priestman v. Thomas, L. R. 9, Pro. Div. 70; Birch v. Birch, (1902) P. 130; Beyer v. Le Fevre, 17 App. Cas. (D. C.) 238; De Bussierre v. Holladay, 4 Abb. N. C. · (N. Y.) 111, 55 How. Proc. 210.

24 Sowell v. Sowell's Admr., 40 Ala. 243; Estate of Cobb, 49 Cal. 599; Wright v. Simpson, 200 Ill. 56, 65 N. E. 628; Gregg v. Wyatt, 78 Iowa 703, 42 N. W. 461, 43 N. W. 760; Estate of Charlebois, 6 Mont. 373, 12 Pac. 775; In re Lawrence's Will, 7 N. J. Eq. 215; In re Lyons' Will, 73 Hun 433, 26 N. Y. Supp. 469.

thereafter be determined, and such invalidity may be shown not only by evidence of fraud, undue influence, and the like in obtaining the will, but of forgery, lack of due execution or of any other cause which would invalidate the instrument. However, matters pertaining to the admission of wills to probate, the granting of letters testamentary and of administration and of the revocation of letters and of probate, are peculiarly within the jurisdiction of the courts of probate except where by statute the courts of equity are authorized to act.25

§ 1320. Courts of Equity May Be Vested by Statute with Probate Jurisdiction.

In several jurisdictions, by statute, courts of equity are allowed to hear and determine contests regarding the validity of wills which have theretofore been admitted in the probate court, such suits being required to be brought within a limited time. This right is generally extended only to those who did not contest the will in the court of probate.26 In some states there are no equity courts as such, the courts being designated by such names as District or Circuit courts, or the like, but they possess general jurisdiction both in law and in equity. In some of these states the statutes provide that the validity of a will once admitted to probate may thereafter within a

25 Webb v. Cleverden, 2 Atk. 424; Kerrich v. Bransby, 3 Bro. H. L. Rep. 358; Tudor v. James, 53 Ga. 302; Andersen v. Andersen, 69 Neb. 565, 96 N. W. 276.

See citations, note 1, supra.

26 Ala. Code (1896), §§ 4298, 4300; Breeding v. Grantland, 135 Ala. 497, 33 So. 544; McCutchen v. Loggins, 109 Ala. 457, 19 So.

810; Ellis v. Crawson, 147 Ala. 294, 41 So. 942; Shaw v. Moderwell, 104 Ill. 64, referring to Laws 1871-72, p. 777; Sinnet v. Bowman, 151 Ill. 146, 37 N. E. 885; Sharp v. Sharp, 213 Ill. 332, 72 N. E. 1058, referring to Laws of 1895, p. 327, and Laws of 1903, p. 355; Savage v. Bowen, 103 Va. 540, 49 S. E. 668.