The opinion of the court was delivered by
Steele, J.
It is urged that this will, though made by an infant of the age of seventeen years, may have been valid as a soldier’s will, by virtue of some ratification it may have received while the infant was in actual military service, and that its probate may have been, or may hereafter be, justified by proof of such a ratification.
We do not think the statute enables an infant to make a valid will under any circumstances. The statute o'f wills, in general terms, limits the right of disposing of property by testament to persons of full age. After declaring the forms which must be observed in their execution, it provides that “ nothing in this chapter shall be construed to prevent any soldier in actual military service, or any mariner or seaman being at sea, from disposing of his wages, or other personal estate, as he might otherwise have done.” We think the words “ as he might otherwise have done,” refer merely to the mode of execution. *324This view is warranted by the language, is sustained by its connection with the preceding sections, and is confirmed by the reason of the provision. The situation of soldiers in actual service, and of sailors at sea, renders it impracticable for them to observe the statutory forms in making wills, and this provision is made in view of that fact. It would not be reasonable to provide that an infant soldier’s will made in due form while out of actual service would be invalid, and that the same will made without form while with his regiment in service would be valid. His infancy is just as much a disability in fact in the one case as the other, and we see no reason why it should not be in law. In England no distinction existed between soldiers and civilians as to the age necessary to make a valid testament, but only as to the mode of execution. Either might dispose of personal property by will after arriving at the age of fourteen years. When our statute limited the testamentary privilege to persons of full age, it continued the distinction as to the mode of execution which existed before, and for which there was reason, It did not create a new distinction for which no reason existed. Soldiers and civilians stand equal in the law as to the testamentary power or privilege, but the soldier is excused from observing certain forms in exercising his privilege out of consideration for the necessary embarrassments of his situation while.in actual service.
This will was absolutely invalid, and its probate was at the least unauthorized. The disability arose not from unsoundness of mind, the question with relation to which, must always be a matter of judgment. It was an absolute disability depending upon an arbitrary fact which is not disputed. If the statute had limited the right to make wills to males, the probate of the will of a female would have been as easily justified as this. Still we are not now prepared to say that the probate of the will of a person, who should afterwards prove to be a minor, is void, or that it could, except in extreme eases, or for that reason alone, be set aside, or that it ever should be set aside if the fact of the infancy was doubtful, or had been contested and tried in the probate court, or if the heir at law had had actual notice of the presentment of the will for probate. These points we do not discuss or decide.' We think the facts of this case are suffici*325ent to warrant the cotirt in deciding it upon the plainer ground that the prohate was so procured as to amount to a fraud upon the heir at law. The court of chancery should find the fact of fraud upon less evidence, and restrain the legatee from claiming under the prohate for a less serious fraud than would ordinarily be held sufficient, when, as in this case, the infancy is conceded, and the heir at law entirely unaware of the proceedings, and the probate manifestly and glaringly wrong. It turns out, in this case, that the infant testator enlisted at the age of seventeen ; that he was living at the time with the defendant, Aaron Pike; that the said defendant procured himself to be appointed the minor’s guardian, in order to consent to his enlistment. The infant was to have a bounty of five hundred dollars from the town of Searsburg ; and while still residing in the guardian’s family after enlistment, he went with this guardian to Wilmington, and there made a will, appointing the said Aaron Pike his executor, and Aaron Pike’s wife his sole legatee. The soldier went to the front, and soon died at Port Hudson. His father, who was his heir at law, knew neither of his enlistment, nor his death, until after the defendant, Pike, had procured the will to be probated. It is not claimed that the defendants made the least effort to notify the orator of his son’s death, and the probate was thus effected at the interested instance of the husband of the sole -legatee. The defendants concede that they knew of the alleged testator’s infancy, and they do not claim to have brought the fact to the notice of the probate court, or that the court was otherwise informed of it. Taking all the facts together, we are satisfied that the withholding from the probate court of all knowledge of this material fact was wilful, and for a corrupt purpose, and the probate procured thereby, was a fraud upon the heir at law from which the legatee should derive no advantage.
The question as to whether usually this proceeding should not be' by petition, instead of a bill in chancery, is. not legitimately involved in this case, because the necessity of an injunction upon the insolvent defendant, Aaron Pike, rendered a resort to the court of chancery necessary, even if otherwise it would not be proper.
It is urged that the decree should not in any event be affirmed, but the matter should be left open for the probate court to order a new *326hearing. As we hold that an infant can, under no circumstances, make a valid will, this is not necessary.
It is further insisted, that there may be debts against the infant’s estate, but as the defendant town of Searsburg does not appeal from the decree of the Chancellor, and as the heir at law is entitled to the estate as against the defendant, Pike, we do not deem it necessary to 'discuss the case with reference to this unproved and merely supposable state of facts.
The decree of the chancellor is affirmed, and cause remanded.