Pettit v. Morton

SULLIVAN, PJ'.

The vital question is whether a court of equity,, under the unprobated will, can declare a trust on the ground of fraud, and in that manner ultimately have declared invalid the will in favor of the heirs at law, duly probated under the statute, and under which occupancy, possession and rents and profits ensue?

In Seeds v. Seeds, 156 N.B. 193, the Supreme Court held that an heir at law might maintain an action in equity to have a devisee under a forged will, fraudulently admitted to probate, declared a trustee ex maleficio, even after the statutory time for contesting the will…