STORY, Circuit Justice.
It can scarcely be denied that there are some suspicious circumstances in the present case, which cast upon it a shade of doubt. It appears that Jacob Gould, the intestate, died in 1819, (by murder), leaving an ample personal estate for the payment of all his debts, except the two debts now in controversy, one asserted to be due to David Gould, Jr., (his brother), amounting to $1576, and the other asserted to be due to Mary Gould, (his sister), amounting to $866. The defendant, Thomas Gould, Jr., (the son of another brother), took administration upon the estate of Jacob Gould, in February, 1820, and in his second administration account, rendered to the judge of probate in February, 1821, he represented himself to have paid the said sums in cash to David Gould, Jr., and Mary Gould, and charged the estate therewith, accordingly. In point of fact, he had not paid the same; but had only made a formal settlement, with them, and given his notes for the amount, with an understanding, that the notes should stand good against him, only for the amount which should ultimately be allowed by the judge of probate, as due to them. This was certainly an extraordinary proceeding, and utterly unjustifiable. It could scarcely have been resorted to, except for the purpose of escaping from a trial at law, of these contested claims, in the presence of the whole county. The proceeding does not appear to have been made known to the judge of probate, or the true state of the facts brought to his notice. If it was not, then it must have operated as a surprise upon his judg-[871]*871rnent, and led him to less scrutinizing and jealous inquiries than he would otherwise have bestowed upon the claims. I do not stop to inquire, whether the judge of probate had jurisdiction to examine and finally to settle unliquidated claims like the present, which from their very nature and character are open to controversy. But I may say with all due respect, that in a case circumstanced like the present, where the real estate of the intestate was to be sold for the discharge of these claims, it would have been a far more satisfactory mode of proceeding, for the judge of probate to have sent the case to be decided, in the first instance, by a trial and judgment at law. What was the nature of these claims? It seems, that both of the claimants had lived with the intestate for many years, and, while living with him, were maintained by him. The debt of David Gould, Jr., was, with the single exception of one item of $11 for money lent, for services rendered from April, 1800, to November, 1819, and all the services were charged in general terms, “for services rendered in farming,” annually, from the 1st of April, 1807, down to the 1st of April, 1819, at $112 per annum. The account of Mary Gould was “for keeping house” for the intestate, from the 1st of April, 1803, to the 25th of November, 1819, at $1 per week, being charged at the rate of $52 per year.
Now, there is no direct evidence whatsoever, before this court, that there was between the intestate and either of these claimants, any agreement for the payment of wages, during any portion of this long period, or any acknowledgment by the intestate, of any unliquidated debt, for these services, owing to them by him, or any account rendered to him, or recognized by him, during this whole period, extending from twelve to fifteen years. This very circumstance was calculated to excite some notice and to call for some explanation; especially as it would have been the duty of the administrator, in the absence of all controlling proofs, to have interposed the bar of the statute of limitations, as well as to have contested the general validity of the claims. It does not appear what was the exact evidence before the judge of. probate, to establish these claims; and indeed, it can scarcely be supposed that those proofs are now within • the memory of the parties, so as to enable' this court to see their full bearing and strength. The general rule certainly is, that the acts of a court of justice are to be presumed to be rightfully done, according to the maxim, “Omnia rite acta presumentur." The case, however, would have been much stronger in favor of the presumption, so far as the administrator and the claimants, then before the court, are concerned, if all the other heirs had been present at the hearing; or had had personal notice to attend the hearing, and had neglected to do so; or if the claims were shown to have been then bona fide contested with all the zeal, and. earnestness, and vigilance of persons having an adverse interest, which they were resolutely determined to support for themselves and all the other heirs having a similar interest. But, in point of fact, the present plaintiffs lived, at the time, in distant states of the Union; they had no personal notice of the claims, or of the presentment thereof for adjustment, before the judge of probate. The only person, who appeared to contest the claims, was Nathan Gould, a brother of the female plaintiffs, and he appeared without counsel; and if his own statement, given in his deposition in this case, is to be credited, (and it is certainly open to very grave objections, in point of credit),* he himself withdrew his opposition upon an agreement made and negotiated between himself and the claimants, with the knowledge of the administrator, by which he was to receive a pecuniary compensation. In short, it was, according to his statement, a' bargain for hush-money, ex turpi causa.
Independent, however, of the serious objections to the testimony of Nathan Gould, founded upon his supposed want of veracity, and his general reputation, there are some other circumstances, which go greatly to diminish its force and credibility. The intestate died leaving two brothers and two sisters living, and the children of one brother and one sister, deceased, who were entitled to share in the distribution of his estate. It was, therefore, divisible into six parts, of which the plaintiffs claim (with Nathan Gould, their brother), only one sixth. When these contested claims were before the judge of probate for allowance, the surviving brothers and sisters, not interested in the claims, made a written statement, that they had seen and examined the account, and agreed to allow the same. So that, in point of fact, the claims were admitted by the heirs of three-sixths, and were then and are now contested by the heirs of one-sixth only. Now, the bill charges, that the settlement and allowance of the claims were procured by a fraudulent agreement and conspiracy between the administrator and all the heirs, except those concerned in the sixth represented by the plaintiffs, and, of course, with a design to defraud the plaintiffs of their proper share in the intestate’s estate. This is a very grave charge; and certainly ought to be made out by strong and satisfactory proofs. In the first place, it is to be considered, that it is brought forward, for the first time, about nineteen years after the settlement of the claims in and by the probate court. In the next place, all the parties asserted to have been engaged in the transaction, except the administrator and the husband of Mrs. Converse, (one of the sisters of the intestate), are now dead. If the claim • ants of these debts, Daniel Gould, Jr., and Mary Gould, were now living, there ought to be ample means yet remaining to estab[872]*872lish these claims, and, at all events, they could be called upon to explain all the circumstances upon which their claims were founded.
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STORY, Circuit Justice.
It can scarcely be denied that there are some suspicious circumstances in the present case, which cast upon it a shade of doubt. It appears that Jacob Gould, the intestate, died in 1819, (by murder), leaving an ample personal estate for the payment of all his debts, except the two debts now in controversy, one asserted to be due to David Gould, Jr., (his brother), amounting to $1576, and the other asserted to be due to Mary Gould, (his sister), amounting to $866. The defendant, Thomas Gould, Jr., (the son of another brother), took administration upon the estate of Jacob Gould, in February, 1820, and in his second administration account, rendered to the judge of probate in February, 1821, he represented himself to have paid the said sums in cash to David Gould, Jr., and Mary Gould, and charged the estate therewith, accordingly. In point of fact, he had not paid the same; but had only made a formal settlement, with them, and given his notes for the amount, with an understanding, that the notes should stand good against him, only for the amount which should ultimately be allowed by the judge of probate, as due to them. This was certainly an extraordinary proceeding, and utterly unjustifiable. It could scarcely have been resorted to, except for the purpose of escaping from a trial at law, of these contested claims, in the presence of the whole county. The proceeding does not appear to have been made known to the judge of probate, or the true state of the facts brought to his notice. If it was not, then it must have operated as a surprise upon his judg-[871]*871rnent, and led him to less scrutinizing and jealous inquiries than he would otherwise have bestowed upon the claims. I do not stop to inquire, whether the judge of probate had jurisdiction to examine and finally to settle unliquidated claims like the present, which from their very nature and character are open to controversy. But I may say with all due respect, that in a case circumstanced like the present, where the real estate of the intestate was to be sold for the discharge of these claims, it would have been a far more satisfactory mode of proceeding, for the judge of probate to have sent the case to be decided, in the first instance, by a trial and judgment at law. What was the nature of these claims? It seems, that both of the claimants had lived with the intestate for many years, and, while living with him, were maintained by him. The debt of David Gould, Jr., was, with the single exception of one item of $11 for money lent, for services rendered from April, 1800, to November, 1819, and all the services were charged in general terms, “for services rendered in farming,” annually, from the 1st of April, 1807, down to the 1st of April, 1819, at $112 per annum. The account of Mary Gould was “for keeping house” for the intestate, from the 1st of April, 1803, to the 25th of November, 1819, at $1 per week, being charged at the rate of $52 per year.
Now, there is no direct evidence whatsoever, before this court, that there was between the intestate and either of these claimants, any agreement for the payment of wages, during any portion of this long period, or any acknowledgment by the intestate, of any unliquidated debt, for these services, owing to them by him, or any account rendered to him, or recognized by him, during this whole period, extending from twelve to fifteen years. This very circumstance was calculated to excite some notice and to call for some explanation; especially as it would have been the duty of the administrator, in the absence of all controlling proofs, to have interposed the bar of the statute of limitations, as well as to have contested the general validity of the claims. It does not appear what was the exact evidence before the judge of. probate, to establish these claims; and indeed, it can scarcely be supposed that those proofs are now within • the memory of the parties, so as to enable' this court to see their full bearing and strength. The general rule certainly is, that the acts of a court of justice are to be presumed to be rightfully done, according to the maxim, “Omnia rite acta presumentur." The case, however, would have been much stronger in favor of the presumption, so far as the administrator and the claimants, then before the court, are concerned, if all the other heirs had been present at the hearing; or had had personal notice to attend the hearing, and had neglected to do so; or if the claims were shown to have been then bona fide contested with all the zeal, and. earnestness, and vigilance of persons having an adverse interest, which they were resolutely determined to support for themselves and all the other heirs having a similar interest. But, in point of fact, the present plaintiffs lived, at the time, in distant states of the Union; they had no personal notice of the claims, or of the presentment thereof for adjustment, before the judge of probate. The only person, who appeared to contest the claims, was Nathan Gould, a brother of the female plaintiffs, and he appeared without counsel; and if his own statement, given in his deposition in this case, is to be credited, (and it is certainly open to very grave objections, in point of credit),* he himself withdrew his opposition upon an agreement made and negotiated between himself and the claimants, with the knowledge of the administrator, by which he was to receive a pecuniary compensation. In short, it was, according to his statement, a' bargain for hush-money, ex turpi causa.
Independent, however, of the serious objections to the testimony of Nathan Gould, founded upon his supposed want of veracity, and his general reputation, there are some other circumstances, which go greatly to diminish its force and credibility. The intestate died leaving two brothers and two sisters living, and the children of one brother and one sister, deceased, who were entitled to share in the distribution of his estate. It was, therefore, divisible into six parts, of which the plaintiffs claim (with Nathan Gould, their brother), only one sixth. When these contested claims were before the judge of probate for allowance, the surviving brothers and sisters, not interested in the claims, made a written statement, that they had seen and examined the account, and agreed to allow the same. So that, in point of fact, the claims were admitted by the heirs of three-sixths, and were then and are now contested by the heirs of one-sixth only. Now, the bill charges, that the settlement and allowance of the claims were procured by a fraudulent agreement and conspiracy between the administrator and all the heirs, except those concerned in the sixth represented by the plaintiffs, and, of course, with a design to defraud the plaintiffs of their proper share in the intestate’s estate. This is a very grave charge; and certainly ought to be made out by strong and satisfactory proofs. In the first place, it is to be considered, that it is brought forward, for the first time, about nineteen years after the settlement of the claims in and by the probate court. In the next place, all the parties asserted to have been engaged in the transaction, except the administrator and the husband of Mrs. Converse, (one of the sisters of the intestate), are now dead. If the claim • ants of these debts, Daniel Gould, Jr., and Mary Gould, were now living, there ought to be ample means yet remaining to estab[872]*872lish these claims, and, at all events, they could be called upon to explain all the circumstances upon which their claims were founded. In the next place, the answer of the administrator pointedly and explicitly denies all the allegations in the bill, in respect to the fraud and conspiracy charged in the bill; and the answers of all the other defendants do, in effect, either positively adopt, or impliedly admit the truth of the statements of the administrator. Now, each of these considerations is of great importance in a case circumstanced like the present. The plaintiffs apply for relief in a case asserted to be of fraud in the settlement of a probate account nearly nineteen years ago. That this court is competent in point of jurisdiction to grant relief in such a case, if fully made out in proof, — notwithstanding similar relief may be attainable in the state court,— is a matter upon which I entertain no doubt. This court possesses full jurisdiction in equity, in all cases of fraud, including fraud in obtaining judgments, and decrees, in other courts; and is not limited in its exercise to cases, where, by the state laws, no relief can be granted by the state courts. The jurisdiction is concurrent with the state courts in all such cases. I know of but a single exception, which has been allowed, and that is, fraud in obtaining a will of real or personal estate, which has already been held to be exclusively examinable and triable in the proper court, having jurisdiction in the premises, whether it be a court of common law, or an ecclesiastical court. See 1 Story, Eq. Jur. §§ 184, 238, 440, and the cases cited in the notes Id. See, also, Allen v. Macpherson, 5 Beav. 469; on appeal, 1 Phil. Ch. 133; Smith v. Spencer, 1 Younge & C. Ch. 75. Even this exception, has been thought to stand more upon authority than upon principle. In the case of Gaines v. Chew, 2 How. [43 U. S.] 619, 645, the supreme court of the United States said: “In cases of fraud, equity has a 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.” But of the jurisdiction of a court of equity to relieve in cases of fraud in the settlement of probate accounts, it does not appear to me, that there is any reasonable ground to entertain a doubt. In the case of Pratt v. Northam [Case No. 11,376], I had occasion fully to consider and act upon the matter. But how do the plaintiffs account for their delay in bringing the present suit? 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. The present suit was brought more than twenty years after the death of the intestate. His death could not but have been known to them, as it was a case of murder of no ordinary celebrity. Indeed, the plaintiffs do not pretend to any ignorance of that fact, nor even that administration had been taken upon his estate. David Gould (one of the plaintiffs), although at the time out of the state, afterwards came and resided within it for a number of years, and then removed to New Hampshire. Now, why did he not, when he resided within the state, make examination and inquiries into the validity of these claims? They were spread at large upon the probate records, and might then have been examined, and, If fraudulent, an application might have been made to the probate court to re-examine, and' annul them. No such application was then made.
Supposing that David Gould did not communicate any facts to the other plaintiffs, touching the existence or allowance of these' claims in the probate settlement, a supposition, which ought not to be lightly indulged, still, as the plaintiffs must have known, that-administration had been taken upon the intestate’s estate, they had ample means within their power, at a very early period, to ascertain from the probate records the amount of his real and personal estate. If they did not choose to institute any such inquiries, but lay down in indolent indifference, they have no right to ask a court of equity, at a great distance of time, under a great change of circumstances, to supply their want of negligence. It is said, that they were poor, and. lived in distant states. Be it so; but the means of communication and inquiry, without any serious expense, were then within their reach; and if so,’they were bound to make due inquiries, and act upon the results within a reasonable time. Suppose they had made Ruch inquiries, and ascertained the facts of the allowance and settlement of these claims in the probate court, would their poverty, or distance, have constituted of themselves a-sufficient ground for a court of equity, fifteen or eighteen years afterwards, to re-examine the validity of these claims? Or would they have not been required, with reasonable diligence, to have followed up these inquiries by some legal proceedings? Would they have had a right to lie by, until, by lapse of time, and the death of parties, great obscurity must necessarily have been thrown over the original transactions, and greatly impaired the proofs to justify them? Besides; after-the administrator’s sale of a portion of the real estate of the intestate, under the authority of the probate court, in 1821, a partition of the residue of his real estate was made in the same year, under the authority of the same court, and the plaintiffs, upon that division, had awarded to them for their share or owelty of partition a sum of money, which their own witness asserts to have been paid, and received by them. Certainly, under, such circumstances, they were put upon inquiry, what was the true amount of their' shares, - [873]*873.and what had been-the disposition made of the residue of the intestate’s estate. Why was no inquiry then made? It is said, that the plaintiffs then had no knowledge of the secret fraudulent agreement and conspiracy,, and that it has come to their knowledge only within a recent period. And from whom does the information now come? From their own brother, Nathaniel Gould, admitting himself to be a participator in the fraud, if, in-deed, he was noi the dux facti. And when does he make the discovery? Upon their own showing, after most of the parties interested were in their graves, when, if his statements were false, they were far less liable to detection and overthrow by opposing proofs. The claimant David Gould, Jr., died in 1834, and the claimant Mary Gould, died in 1836. If they had • been living, they might have satisfactorily established the validity of their • own debts; and, at all events, might have; disproved the asserted fraud and conspiracy. Thomas Gould too, if living, might have disproved the fraud and conspiracy, in which he is asserted to .have been a party and an •actor. But he, also, is. dead. So that we see,' that the bill is now brought after' a great change of circumstances; and it seeks to •charge the dead, as well as the living, with co-operation in a base and delibérate fraud. • It seeks, if one may venture upon the bold figurative expression of an eminent judge, to make men sin in their graves. Now, under such circumstances, it is plainly the duty of the court, to require the most full and satisfactory proofs, that there was: such a fraud and conspiracy as the bill charges, and that: the debts brought forward by David Gould, •Jr., and Mary Gould, were wholly fictitious, and unfounded in fact. It is not sufficient to raise suspicions of bad faith, from the doubtful character of the claims. The plaintiffs must go farther; they must establish the truth of the charge beyond any reasonable -doubt, and by evidence, not only competent but credible. Fraud is never presumed, even against the living; and a fortiori never against the dead, whose presence cannot be demanded to meet and falsify the charge. The onus probandi then is upon the plaintiffs to make out the case, omni exceptione major. Have they so done?
It is a perfectly well settled rule in equity, that an answer, responsive to the allegations -of the bill, is positive evidence for the defendant, and is to be taken as true, .unless disproved by the testimony, of two credible witnesses; or by one credible witness and facts entirely equivalent to, and as corroborative as another witness. In the present case, the principal defendant, Thomas Gould, Jr.,' has in the most direct and positive manner ■denied all the charges of fraud and conspiracy stated in the bill. He is supported by the concurrent answers of all the other defendants, not one of whom contradicts, or impugns, or denies the truth of his answer, "What, then, is the evidence in support of the bill? First; it is said, that the debts are in themselves of a suspicious character, under the circumstances. It does not follow, that they may not, nevertheless, have been entirely well founded; for though open to suspicion and inquiry, they are not of a character, which stamps upon them either falsity, or incredibility. They are just such as may have arisen, and from the entire personal confidence between the people, in the near relation in which they stood to each other, none but the members of the family might know, or be presumed to know of their existence. Then as- to the positive testimony to contradict the answers. The main reliance, if not the exclusive reliance, is upon the deposition of Nathaniel Gould, and the deposition of Ebenezer Buckman. As to the former, It is impossible not to feel, that he stands In a very peculiar predicament It does not strike me, that he ■ is incompetent in point of interest. But his testimony labors under very grave difficulties. The opposing testimony against his credibility is so strong, that if seems shaken to its very foundation; and then again, he comes confessedly to testify to his own turpitude. The maxim of the Roman law, allegans suam-turpitudinem non est audiendus, seems to-have been transferred into our law, at least to the extent of taking from such testimony, standing alone, all its intrinsic force and efficiency. Branch, Max. p. 10; 4 Co. Inst. 279. Then as to Buckman’s. testimony. It was not taken in "this cause; but it is a deposition ' taken in perpetuam rel memoriam before state magistrates, under the statute of Massachusetts. Rev. Acts Mass. c. 94, p. 574, §§ 34r-37. It has not been recorded within the time prescribed by law; and there-fore is not, according to the terms of the statute, admissible in evidence as a deposition. This is not deified; but then it is said,: that it is offered, not as a deposition, but as proof of what a deceased witness swore upon a lawful occasion, as to the subject in controversy. Now, there are various objections to its admissibility in this latter view. In the first place, the deposition was not taken in any suit at all; nor was it taken in a controversy- substantially by and between - the same parties. The deposition was taken at the request of the present plaintiff, David Gould, and none of the co-plaintiffs were parties; and the only adverse party summoned to attend the taking of the deposition, was the defendant, Thomas Gould, Jr., and none of the other defendants were summoned as parties. Neither in substance nor in form, was it, therefore, between the same parties, It does not appear to me, that, under such circumstances, -it could, in Massachusetts, be used at all under the local law; for to reject it as a deposition taken in perpetuam rei memoriam, and yet to receive it as evidence in the cause, would be to defeat the very objects and policy of the statute of Massachusetts. It would be, to enable the party [874]*874to avail himself of his own laches, and to give him the benefit of the evidence, when he had chosen to violate the precepts of the statute. But, however it might be in the state court, it seems to me, that it is not admissible in the courts of the United States; for the act of congress, of the 20th of February, 1812, c. 28 [2 Stat. 682], does not apply to any case where the deposition could not be admissible, as such, in the state court That act declares, “that in any cause before a court of the United States, it shall be lawful for each court in its discretion, to admit in evidence any deposition taken in perpetuara rei memoriam, which would be so admissible in a court of the state wherein such cause is pending, according to the laws thereof.” Even if this court possessed a discretion on the subject it could scarcely be deemed a fit case, under such circumstances, to admit the deposition. Taking then the deposition of Ebenezer Buckman out of the case, there is no testimony in support of the bill, which can possibly overcome the strong denials of the answer of the defendant, Thomas Gould, Jr. Even if his deposition were admitted, I should have great difficulty in placing confidence in the truth of the charge asserted in the bill, under all the circumstances. The whole of the supposed bargain was by parol; and it was followed up by no acts of the parties during their lifetime, in performance thereof. And, as it should seem, all the parties rested satisfied with that state of things, during a long course of years, without any public com» plaint, or any attempt to compel a performance of the bargain, although some of. the terms seem to require a prompt fulfillment. A parol promise would seem a very slender foundation, upon which to rest an acquiescence for so many years, accompanied, as it must have been, with a present sacrifice of title to some portion of the assets of the intestate.
Upon the whole, without going farther into the facts of the case, my judgment is, that the charges in the bill are not made out, and that the bill ought to be dismissed; that each party ought to pay his own costs, except the costs of printing the record, which ought to be equally divided between the plaintiffs and the defendants; the plaintiffs ought to pay one moiety, and the defendants the other moiety thereof; the printing of the record being for the benefit of both parties.