¶1*289The following opinion was filed at tbe January term, 1872. ■
¶2I. It is a well settled doctrine that it is competent for a court of equity to relieve against a judgment obtained by fraud. This doctrine has frequently been recognized and acted upon by this court. Merrit v. Baldwin, 6 Wis., 439; Huebschman v. Baker, 7 id., 542; Ableman v. Roth, 12 id., 81; Stowell v. Eldred, 26 id., 504.
¶3II. But it is urged that the case where the probate of a will has been obtained by fraud is an exception, and that in such case a court of equity has no power to relieve against the judgment or'order of the probate court admitting the will to probate, although the same was fraudulently obtained. It must be conceded that the authorities which sustain this view are very numerous both in the United States and England. It is sustained also by Judge Story, in 1 Eq. Jur., § 184, and many of the authorities are referred to in the notes to that section. The reason for this exception is not very apparent, and as was said by Judge Story in Gould v. Gould, 3 Story’s R., 516, it has been thought to stand more upon authority than upon principle. Thus, in Gaines and wife v. Chew, 2 How., 619, it is said: “ In cases of fraud, equity has concurrent jurisdiction with a court of law; but in regard to a will, charged to have been obtained through fraud, this rule does not hold. It may be difficult to assign any very satisfactory reason for the exception. That exclusive jurisdiction over the probate of wills is vested in another tribunal, is the only one that can be given.” Two cases decided by this court are cited as establishing a different doctrine. These are McLachlan v. Staples, 13 Wis., 448; and Bassett v. Warner, 23 id., 6 . Also the case of Tebbets v. Tilton, 4 Foster, 120, is cited for the same purpose. Neither of these cases relates to the probate of a will. In McLachlan v. Staples, a bill in equity was sustained, which was filed for the purpose of setting aside certain fraudulent accounts which the executors had *290procured tobe allowed in their favor against the heir of their testator. In Bassett v. Warner the action was to set aside certain fraudulent conveyances made by the administrator under licenses granted by the proper probate court; and it was held that the action could be maintained. In Tebbets v. Tilton, the plaintiff, in an action against the administratrix to recover a debt of her intestate, was allowed to impeach the inventory returned by her to the probate court, for fraud, although an order had been previously made by the probate court, pursuant to a statute, discharging her from all claims of the creditors of the estate. There can be no doubt that a court of equity has Jurisdiction to relieve in cases of fraud in the settlement of probate accounts. It was so held in Pratt v. Northam, 5 Mason C. C., 95; and Gould v. Gould, supra.
¶4The cases cited by the defendant fail to show, therefore, that a court of equity has jurisdiction to relieve against the probate of a will obtained by fraud. It was thought advisable to submit these general remarks upon the question under consideration ; but, inasmuch as we think there is another principle of equity jurisprudence that is conclusive of the ease, we do not decide whether the decree of the county court admitting the will to probate may or may not be reviewed in this action by reason of the frauds charged in the complaint.
¶5III. The principle just mentioned is, that “ a court of equity will never entertain a bill for relief, even in cases of asserted fraud, if the plaintiff has been guilty of gross laches or unreasonable delay.” Gould v. Gould, supra (p. 537). The rule is elementary, and of universal application in actions like this. See also Stowell v. Eldred, supra. We think that the plaintiff has been guilty of unreasonable delay in asserting her alleged rights, and will proceed to suggest some of the considerations which impel us to that conclusion:
¶61. It appears from the complaint that the deceased was entirely wanting in testamentary capacity when he executed the alleged will — indeed that he was very nearly idiotic, and *291that his mental condition must have been well known to the plaintiff at the time.
¶7' 2. The complaint does not deny that the plaintiff had due notice of the hearing before the county court when the will was admitted to probate, and, in the absence of such denial, we must presume the notice. And' she was necessarily informed thereby of the existence of an instrument purporting to be the last will and testament of her late husband.
¶88. Knowing these facts, it was clearly her duty, in the exercise of common and ordinary diligence, to acquaint herself with the contents of the will, to inform the county judge of the mental condition of the testator at the time it purports to have been executed, and to contest the probate thereof. She failed entirely to do so, and permitted the will to be proved without objection.
¶94. But, conceding that no negligence can be imputed to the plaintiff for not contesting the probate of the will, it appears that before the time to appeal from the order admitting it to probate had expired, letters testamentary were issued to the executor, and he took possession of the estate, which consisted principally of securities or obligations for money loaned. It is reasonable to believe that the plaintiff knew that he did so, if she did not turn out the same to him. At that time she must have known the contents of the will. Yet she failed to appeal.
¶105. She had still another opportunity to review the order, within a year after it was made, by applying to the circuit court, and excusing her previous failure to appeal. R S., ch. 117, sec. 29. She neglected to avail herself of that opportunity, but permitted the executor to go on and settle or nearly settle the estate, raising no question, so far as appears, of the validity of the will, permitting all parties interested to act on the faith of it, and very probably acting on the faith of it herself, until nearly five years had elapsed, and then she brought this action. A statement of.these facts is sufficient to show *292that the delay was unreasonable, unless she has satisfactorily excused it.
¶116. The only excuse she offers for such delay is, that when she commenced this action, she had but just learned of the facts and circumstances stated in the complaint, under which the will was procured to be executed and admitted to probate. This is not a good excuse for her delay, for the reason, as before stated, that she knew from the first of the existence of one fact which rendered the will invalid, and would have prevented the probate of it had she asserted the same at the proper time. That fact was the almost idiotic state of the testator’s mind. Of what importance is it then, that she was ignorant of other facts, which, had they been known to her and proved before the county court, would have produced the same result ? Had she known the will had been fraudulently obtained, she could have asserted no right nor obtained any advantage that she could not have asserted or obtained by using the knowledge which she did possess. Besides, the fact that her husband, in his then mental condition, had executed a will, was sufficient to suggest to any sensible person the idea that he was induced to execute it by some undue influence or other fraudulent means, and was enough to put any person interested adversely to such will upon inquiry as to the means used to accomplish the purpose. The plaintiff does not claim to have exercised the slightest diligence in that respect.
¶12Upon the whole case we are of the opinion that the complaint shows that the plaintiff has been guilty of such unreasonable delay in asserting her alleged rights, that she has lost her standing in a court of equity, and cannot be permitted in this action to attack the validity cf her late husband’s will, or of the order of the county court admitting the same to probate. In other words, we think the complaint fails to state a cause of action.
¶13It follows that the order of the circuit court, sustaining the demurrer to the complaint, must be affirmed.
¶14By the Court. — Order affirmed.
¶15*293Tbe appellant moved, for a rebearing, and tbe following opinion upon that motion was filed at tbe June term, 1872.
¶16In tbeir argument in support of tbe motion for a rebearing, tbe learned counsel for tbe appellant sharply criticize tbe statement in tbe foregoing opinion to tbe effect that tbe complaint shows that tbe deceased bad not testamentary capacity when be executed tbe alleged will; and they insist that, if tbe court was mistaken in that particular, tbe decision is necessarily erroneous. After a careful review of tbe case, we are still of tbe opinion that tbe plaintiff was guilty of gross laches, even though it be conceded that tbe testator possessed testamentary capacity when be executed tbe paper purporting to be bis will. Tbe plaintiff knew that bis mental condition was such that be was very liable to be imposed upon; she knew, or might have known, that tbe will was unfavorable to her; and those circumstances were sufficient to cause a reasonable suspicion that it bad been obtained by some undue influences exerted by some person or persons over tbe mind of tbe testator, or, in other words, that tbe will was fraudulently obtained. Tbe exercise of reasonable diligence by tbe plaintiff, under those circumstances, would have led her to investigate at once tbe facts connected with tbe making and execution of tbe will; and tbe most natural, and probably tbe most effectual, way to do this would have been for her to have informed tbe county judge of tbe condition of tbe testator’s mind, and to have required all persons who might reasonably have been supposed to know anything relative to tbe circumstances under which tbe will was executed, to appear and testify on tbe bearing of tbe petition that tbe same be admitted to probate. It is highly probable, that, if the will was fraudulently procured, sucha course would have exposed tbe fact and defeated tbe probate of tbe will. Failing to adopt that course, and failing, so far as appears, to make any effort whatever to discover the fraud which she bad every reason to believe bad *294been perpetrated upon the testator and upon herself, but acquiescing in the validity of the will for five years, it must be that laches is imputable to her, whether the testator had or had not testamentary capacity.
¶17But it is not conceded' that the complaint shows that the testator, when he executed the will, had testamentary capacity. Upon the authority of Stewart's Executor v. Lispenard, 26 Wend., 255, it is claimed that if the testator was not totally deprived of reason when he executed the will — if he then had any understanding, no matter how weak it might have been —• he had testamentary capacity. That case so held; and, on the authority of it, the cases of Blanchard v. Nestle, 3 Denio, 37, and Newhouse v. Goodwin, 17 Barb., 236, cited by counsel for the appellant, and some other cases in New York, were decided.
¶18But the authority of these cases has been greatly shaken in that state, if not entirely overruled, by the decision of the court of appeals in Delafield v. Parish, 25 N. Y., 9, where the subject of testamentary capacity received great consideration, and is most ably discussed by several of the judges. Judge Davies, who wrote the leading opinion, after a somewhat extended review of cases on the subject, gives his conclusions in the following language: “We have held that it is essential that the testator has sufficient capacity to comprehend perfectly the condition of Ids property, his relations to the persons who were, or should or might have been, the objects of his bounty, and the scope and bearing of the provisions of his will. He must, in the language of the cases, have sufficient active memory to collect in his mind, without prompting, the particulars or elements of the business to be transacted, and to hold them in his mind a sufficient length of time to perceive at least their obvious relations to each other, and be able to form some rational judgment in relation to them.” p. 29.