1. The complainants insist that their bill is maintainable on three distinct grounds: 1. To set aside the pretended will because of the fraud in procuring it to be made, or on account of the want of capacity to make it. 2. To prevent the injury which might arise if the personal *654estate were withdrawn from the jurisdiction of the court. And 3. Because they are entitled to have the title deeds for the real estate, to enable them to test their right at law. We shall consider the case in each of these views.
It is so well settled that one claiming a right adverse to a will, has no claim to come into chancery on the naked ground to set it aside, that scarcely a decision to the contrary can be found in the books. In Jones v. Jones, 3 Merrivale, 161, the complainant, as heir at law, sought to set aside a will on grounds very similar to those urged here, but Sir William Grant said it was impossible it could be made a serious question, that the validity of a will either of real or personal estate is to be determined in a court of equity — that although there may have been instances of issues directed on the bill of an heir at law, when no opposition had been made to that mode of proceeding, yet he apprehended the heir at law could not insist on any such direction. [See also, 1 Story’s Eq. § 184, 440.] It is only in suits to establish a will against the heir at law, that he is entitled by the course of equity law, to demand an issue, and it only when in such a suit the will is established, that the heir at law will be restrained from his legal right to control it. [2 Story’s Eq. § 1445 to 1449.] The bill cannot therefore be sustained to set aside the will.
2. We apprehend the jurisdiction of chancery to interfere so as to prevent personal estate from being withdrawn from the jurisdiction pending a controversy either with respect to the probate of a will or in relation to the administration, is within its admitted powers. The origin of this jurisdiction most probably was the defect of power in the ecclesiastical courts to provide a remedy for the evil, but with us, the orphans court, by statute, is authorized to grant administration “ during any contest about the validity of a will, the infancy or absence of the executor or administrator, and in such other cases not otherwise provided for, with such limited authority as the case may require, and when the necessity of the case may require, such administration may be granted forthwith, without any citation.” [Digest, 222, $ 10.J In view of this statute, it is difficult to conceive of auy case in which a necessity can exist for the application to the pre*655ventive power of a court of equity, unless it be when the orphans’ court refuses to make an appointment to meet the specific emergency; as, after the appointment, the administrator would possess the necessary means, by a suit at law to prevent the removal of the property by taking it into his possession, or by suing for it by the statutory action of detinue. Without undertaking, however, to say, that a bill to restrain the removal of personal property pending the litigation, will not lie in peculiar cases, we are satisfied this cannot be sustained on this ground, because there is • no sufficient allegation in the bill, that the complainants have applied, or intend to apply, for letters of administration. As the ground upon which equity assumes jurisdiction is, to protect the property pendente lite, (Atkinson v. Henshaw, 2 V. & B. 85; Ball v. Oliver, Ib. 96; King v. King, 6 Vesey, 172;) it is evident the fact of litigation, whether actual or contemplated, should be stated before a bill will hold on this foundation. In this respect the present bill is entirely defective, and there is no allegation on which it can be sustained as a bill to prevent a future injury.
3. In relation to the other ground asserted as sustaining the bill, it falls within the same category as the last. Conceding that cases may exist in which the heir at law might call for the exhibition of title deeds, against the devisee, it is certain a foundation must be laid to induce a court of equity to compel their production. As to these deeds, the complainants, as is said in Jones v. Jones, 3Merivale, 161, stand solely on their title as heirs, and if they cannot set aside the will, they have nothing to do with the deeds.
The only point in the case on which we- have entertained the least doubt, is the second one before noticed, and being now satisfied that is clear for the defendants, we affirm the decree.