Clarke v. Sawyer
New York Court of Chancery
This was an appeal, from' a decree of the assistant vice chancellor of the first circuit, dismissing the complainants’ bill. The bill was filed by the two nieces of John Fisher, deceased, to set aside an instrument purporting to be a will .devising .his real estate. The statement of the facts, in substance, is contained in the report of the case upon an appeal from the surrogate in relation to a probate of the same instrument as , a will of personal property.
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This was an appeal, from' a decree of the assistant vice chancellor of the first circuit, dismissing the complainants’ bill. The bill was filed by the two nieces of John Fisher, deceased, to set aside an instrument purporting to be a will .devising .his real estate. The statement of the facts, in substance, is contained in the report of the case upon an appeal from the surrogate in relation to a probate of the same instrument as , a will of personal property. (¿See Clark v. Fisher, 1 Paige's ‘ Rep. 171.)
1Opinion of the Court
The Chancellor.
I should have bad some doubt? as to the jurisdiction of this court to decree a will void .without awarding an issue devisavit vel non, if all objection to the jurisdiction of the court had not been obviated .by the consent , of the parties. But even if there was a defect of jurisdiction, the bill should not have been dismissed absolutely, so as to bar the complainants’ rights; but it should have been dismissed without prejudice to the rights of the complainants at law. The counsel for the parties, however, upon the argument, agreed that if the court should be against the…
2Cited by1 opinion
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