¶1*353The opinion of the court was delivered by
¶2In May, 1872, Ichabod Chase made his last will. By it he devised to Wait Chase, his son, eighty-seven acres of land, on condition that he, the said Wait, paid to the orators, who were not his heirs, the sum of six hundred dollars. Wait Chase was named as executor. The will was allowed by the Probate Court, and an appeal taken to the County Court by said Wait. An agreement was entered into by the heirs of said Ichabod, by which the estate was divided among them; and by consent a judgment was entered in the County Court disallowing the will; and the judgment was certified to the Probate Court and therein recorded. The orators were minors at the time of the proceedings above recited, and were in nowise parties to the agreement. By the agreement, Wait Chase took the eighty-seven acres of land free from any encumbrance. The bill in this case is brought seeking to charge the said land, which is still owned by Wait Chase, with the payment of the six hundred dollars. The defendants insist, that equity has no jurisdiction for that purpose; that granting the relief prayed for would be, in effect, establishing a will, and in contravention of R. L. sec. 2049, providing that “no will shall pass either real or personal estate, unless it is proved and allowed in the Probate Court, or by appeal in the County or Supreme Court.” It is said that the doctrine is settled, that a court of equity will not entertain jurisdiction to set aside a will obtained by fraud, or establish one suppressed by fraud; for, in such cases, the proper remedy is exclusively vested in the probate or ecclesiastical courts. Smith Man. Eq. 50; Story Eq. Jur. s. 184, and note. But it is also as well settled, that “where the fraud does not go to the whole will, but only to some particular clause, courts of equity will lay hold of the circumstance to declare the executor a trustee for the legatee.” Story Eq. Jur. s. 440; Smith Man. Eq. 57; Mitf. Eq. Pl. 257; 1 Perry Trusts, s. 183. It is insisted, and we think correctly, that the reason why *354a court of equity has no jurisdiction, either to establish, or set aside a will, is, that those questions are within the exclusive jurisdiction of the Probate Courts; but that reason does not extend to the case at bar. The proceedings in this cause do not seek to establish the will of Ichabod Chase; but to charge upon the land in question the legacy given the orators, of which they have been deprived by the fraud of the defendant Wait. To make the payment of the legacy a charge upon the land, without reference to establishing the will, the Probate Court has no power whatever. The case, therefore, falls within the general rule that courts of equity have jurisdiction in all matters of fraud.
¶3All the heirs of the testator were parties to the agreement; his garments were parted among them. The orators complain of the nullification of the particular clause giving them, a legacy. The action of Wait Chase and his co-heirs effectively suppressed the will; in no way or manner can the orators apply to the Probate Court for proof of it. That court has on record the certificate of the County Court that the will has been disallowed; there is no remedy for the orators in the law courts. They have been deprived of it by the act of Wait Chase himself; and he is not now to be heard to say that they once had a remedy at law. A court of equity might as well be abolished, if under such circumstances it could grant no relief. The orators are not seeking the establishment of the will and the settlement of the testator’s estate under it; they only ask payment of the legacy given them, and of which they have been deprived by the act of Wait Chase and his co-heirs. We think for this purpose that a court of equity has jurisdiction. This case may well be governed by that of Mead et al. v. Langdon’s Heirs, cited in Adams v. Adams, 22 Vt. 59, where this court set up and decreed payment of legacies, given in a will never proved in the Probate Court, but which had been suppressed by those interested in the estate, and administration grant*355ed without regard to the will. See, also, 2 Red. Wills, 8; and Story Eq. Jur. s. 98, n. 1, and s. 254.
¶4Sec. 2049, R. L., which, the defendants insist, bars the relief sought by the orators, does not, we think, have that effect. It was not intended to prevent a court of equity taking cognizance of a cause within its jurisdiction, and granting suitable relief. As between the parties to this cause, the will may well be considered as proved in the Probate Court, and the appeal vitiated by the fraud of Wait Chase. The orators’ title to the legacy or the land is by virtue of the decree of the Court of Chancery, not by virtue of the will. The effect of the decree below was not to establish the will; and the persons made defendants by the order of the chancellor are not proper parties to this proceeding; and the pro forma decree making them such is reversed. As to them, the bill should be dismissed; in all other respects the decree is affirmed and the cause remanded.