State v. McGlynn

         The Fourth District Court should have been permitted to send that issue to the country which the Probate declined to do, devisavit vel non, forgery or no forgery.

         The great effort is now and always has been since the accidental probate of this felonious paper, to take shelter behind a formal decree legalizing the felonious act.

         Will or no will when propounded for probate, it is claimed that it became an immaculate testament when solemnized by certain forms.

         Broderick may not have made a will, but Butler withhis coconspirators has secured the Probate Judge's name, if not D. C. Broderick's, to the paper, and no human power can detach it. This is the doctrine that this Court is called upon to sanction.

         Years and generations hence, the April Term of 1862 is to be signalized, as the forgers and speculators would decree it, as an epoch in the legal history of this great State, when its highest tribunal pronounced in favor of an unmitigated fraud, only because an inferior tribunal had sanctioned it, and because the law afforded no escape from its own machinations.

         Such reflections upon the law are unwarrantable, unworthy of any civilized code, and humiliating to listen to, which the law in its mercy only permits to be made in its spirit of self-correction.

         First point--Jurisdiction under the statutes relating to escheats.

         I. For the common law doctrine of escheat, see 4 Kent, 479, 9th edition.

         1. No inquest of office is necessary in such cases, and an action of ejectment can be maintained at once. Id. 477. The inquest is only necessary in case of alienage. (Id. See case of the Wardens and Commonalty of Saddless, 4 Coke, 434, top page, 58a).

         2. And the lands escheatwithout the incumbrances of the debts of the former owner. (4 Kent, 478.)

         3. In New York, and other States, escheated lands are by statute made subject to the debts of the former owner. (Farmer's Loan and T. Co. v. The People, 1 Sand. Ch. 141; Morris v. White, 6 John. Ch. 367.) So in England on bill to redeem under third and fourth William. (4 C. 104; Viscount Downs v. Morris, 3 Hare, 394; 25 Eng. Ch.)

         4. Only lands which descend are liable for debts, in the hands of the heirs and distributees. (Act of April 13th, 1850, Belknap, 169, sec. 315.)

         II. The jurisdiction of the Court is perfect under the statutory provisions relating to escheat. (Act of May 4th, 1852, amended by Act of May 30th, 1855.) Section one declares the escheat; section two, Attorney General files information; section four of the Act of 1855, page two hundred and twenty-two, authorizes the appointment of a receiver.

         The clause in the Act of 1852, section two, " and such estate shall not have been sold according to law within two years after the death of the person last seized," is omitted in section two, as amended by the Act of 1855. Jurisdiction has been exercised several times underthese acts.

         That legal and equitable proceedings may be united under one system. (See N. Y. Ice Co. v. The North Western Ins. Co., 12 Abbott's 414.)

         If the new Act of 1862 is to control the case on the question of jurisdiction, the numerous authorities cited on that point in the Court below need not be repeated. (See section fourth; United States v. Lamperyac, Hempstead, 118-19; 7 Pet. 22. See Sedgwick on the rule as to the retroactive effect of a statute, 202.)

         III. But it is objected under these acts, that:

         1. The state has no remedy in any case of escheat under the Act of 1856, until the expiration of five years from the death of the party last seized. The People v. Rogers, (13 Cal. 159) is relied on for this position.

         The only question in that case was upon the constitutionality of the law of 1856, under article one, section seventeen, authorizing bona fide aliens to inherit.

         That case is not applicable, as the existence of heirs was admitted by the pleadings. Nor is the case law, if applicable, because the Act of 1856 extends the constitutional provision beyond the express limits of its terms. The Legislature could extend the timeto fifty or one hundred years, as well as five.

         2. It is objected, that it appears from the affidavits in the case that there are heirs in existence, and therefore the State has no interest in the question of will or no will. It is said that we are to prove on this motion two things: 1st, the forgery; 2d, the nonexistence of heirs.

         We say: first, we are only required to show this in the complaint, (Prac. Act, sec. 111); second, that no issue was made on that question in the Court below; third, that the issue is now pending on the information, the heirs having appeared in that case and issue being taken on their answer; fourth, that that information is the litigation which this bill refers to, and the property involved is the property sought to be protected pending that litigation; fifth, the affidavits used are ex parte, not taken in the case, except McDonnell's, and he is incompetent--all received under objection. Nothing further need be said in reply to the brief filed in behalf of the McDonnell heirs, who, according to the facts, seem to have sold their birthright for a mess of pottage to those who are despoiling the estate of their strange kinsman. The whole argumentis based on the Act of 1856, and The People v. Rogers (13 Cal. 159). There is in that brief a strange misapplication of the rule stated in People v. Folsom, (5 Cal. 373) that an inquest must first be had; of course, this does not apply to escheats in case of defect of heirs, but to alienage.

         Second point--Equity jurisdiction.

         I. Equity relieves by bill in aid of legal proceedings: 1, An injunction to protect property in litigation. (Prac. Act, secs. 111-12.) " If it should appear by the complaint," etc. (Hicks v. Michael , 15 Cal. 115.)

         2. And entertains jurisdiction in case of an escheated estate. (Morris v. White, 6 John. Ch. 367; Trezvant, Escheator, v. Howard, 3 Desaus, 875, note.)

         3. And to restrain proceedings in other Courts. (3 Dan. Ch. Prac. 1910, including Ecclesiastical Courts; Id. 1913; 1 Eden on Injunctions, 171.)

         II. Equity relieves against every species of fraud. (1 Hoveden on Frauds, 9; People v. Houghtaling , 7 Cal. 351; Pierce v. Robinson , 13 Cal. 127.)

         1. It relieves against decrees obtained by fraud. (1 Sto. Eq. Jur. sec. 252; 2 Id. sec. 1522; Adams Equity, 833-4; Willard's Eq. Jur. 160-1; Story Eq. Plead. sec. 426, 6th ed.; Wright v. Miller, 1 Sand. Chan. 120; Russel v. Wood, 1 John. Chan. 405; Carpentier v. Hart , 5 Cal. 466-7; Arrington v. Sperry , 5 Id. 514; Robb v. Robb , 6 Id. 22; Heyneman v. Dannenburg, Id. 380; Uhlfelder v. Levy , 9 Id. 614-15; Chester v. Miller , 13 Id. 560; City of Oakland v. Carpentier, Id. 551-2; Belloc v. Rogers , 9 Id. 129; and Deck v. Gerke , 12 Id. 433.)

         In Clark v. Perry (5 Cal. 58-9-60) the bill alleged a fraudulent settlement of administrator's accounts, and the decree was pleaded as conclusive, under section two hundred and thirty seven of the Act relating to the Settlement of the Estates of Deceased Persons. (Belknap, 92, 1st edition.) See section thirty-six as to conclusiveness of decrees in probate of wills. What is the difference when the decree is obtained by fraud?

         Sandford v. Head & Merritt (5 Cal. 297-8). Fraudulent decree of Probate Court in ordering plaintiffs to pay over to the administrator a sum of money, charging collusion between the Probate Judge and the administrator, set aside by the exercise of chancery power.

         Full and complete jurisdiction over probate matters by chancerydeclared; and against the constitutionality of the law making the jurisdiction exclusive in Probate Courts. (Wilson v. Roach , 4 Cal. 366.)

         Probate proceedings not to be attacked collaterally. (Castro v. Richardson , 18 Cal. 480. See to same point Irwin v. Scriber, Id. 503.)

         2. Chancery in other States, and in England, has set aside probate decrees in settling accounts on a charge of fraud. (Pratt v. Northam, 5 Mason, 103.)

         Under the statute of Vermont, declaring that such settlements " shall not be the subject of reexamination in any way or manner whatsoever," the statute gives no stronger efficiency to a probate decree than a judgment possesses at common law. (Gould v. Gould, 3 Story, 519, 533, 536-37.)

         The general doctrine of Pratt v. Northam reiterated. (Atkins v. Kurmian, 20 Wend. 246.)

         Probate decrees not to be impeached for fraud collaterally. Another case of jurisdiction. (Harvey v. Richards, 2 Gallison, 231.)

         3. The jurisdiction extended to setting aside the probate of wills, and declaring the person obtaining it a trustee to the injured parties. The distinction is taken in the case of a forged will, as to equity jurisdictionin refusing to set aside a will obtained by fraud, because in that case the fraud is upon the testator, and in the other upon the parties entitled to the estate. (Barnsley v. Powell, 1 Ves. Sen. 120, 285-8, 290.)

         This case is referred to as authority for granting relief against judgment and decrees obtained by fraud, in Russell v. Wood, (1 John. Chan. 406) and in Wright v. Miller, (1 Sand. Chan. 401) and both of these cases are cited as authority for setting aside a decree in Sandford v. Head, (5 Cal. 298) also in Willard's Eq. 160.

         In such case, where the probate of a will is obtained by fraud, the party so obtaining it will be decreed to stand as a trustee for the parties interested. (1 Spence's Eq. 625. And see note 1 to sec. 184, 1 Story's Eq. 183, where the case is cited as authority for the distinction; and the case in Ambler, 762, cited also.)

         Bailey v. Styles, (1 Green Chan. 229). Equity jurisdiction in case of the spoliation of a will. Middleton v. Sherbourne, (4 Young & Collier, 358.) Wills set aside by bill, when obtained by fraud. See case in 2 Com. 498, on this point, further on as to the New York rule. (Clark v. Sawyer .)

         Precedents-- (Equity Draftsman, 70; 2 Van Santvoord's Pleading, 151: Clark v. Gaines, 13 La. Annual, 138.)

         III. But it is objected that equity will not entertain a bill to set aside a will obtained by fraud. This is not the case here. The rule of law already discussed answers this objection. There is no will before the Court. The object is to set aside a decree obtained by fraud upon the distinction taken in Barnsley v. Powell, 1 Ves.

         And in no event will the Court refuse to interfere, where there are other heads of equity jurisdiction involved in the same bill, even incidentally, as in Middletown v. Sherbourne, (4 Young & Collier) where the jurisdiction was sustained to set aside a will obtained by fraud, because the bill sought to set aside some outstanding terms fraudulently obtained. In this case there are several other heads of equity jurisdiction. See the rule as applied in New York. (Clark v. Sawyer, 1 Paige, 172; same case, 2 Barb. Chan. R. 412; 2 Coms. 498.)

         Third point--The jurisdiction of the Probate Court is inadequate.

         I. Special and limited jurisdiction of Probate Courts. (Grimes' Estate v. Norris , 6 Cal. 625; Smith v. Andrews, Id. 654; Haynes v. Meeks , 10 Id. 116; Belknap, 24 and note a; Townsend v. Gordon , 19 Cal. 188.)

         It has no jurisdiction over escheated estates. See statute conferring jurisdiction upon District Courts. (O'Harlin v. Den, 1 Spence, 40-1; 1 Zabriskie, 391, affirmed in Court of errors, and Colgon v. McKean, 4 Zabriskie, 566; Trezvant, Escheator, 3 Desaus, 877-8 and note.)

         II. But it is objected that the decree of Probate set up by the executor in his answer is conclusive. This means only as to collateral proceedings.

         1. Under section thirty-six, making the probate conclusive, if not contested within one year, the rule does not operate in this case, because the probate was contested by McDonnell within that time. See his petition and citation, returnable in February, 1862.

         2. It is no more conclusive than the settlement of an executor's accounts, under section two hundred and thirty-seven, (Belknap, 137) which may be set aside on the ground of fraud by a party who was not actually before the Court. (Clark v. Perry , 5 Cal. 58; Williams v. Price , 11 Cal. 213; Pratt v. Northam, 5 Mason, 103; Oakland v. Carpentier , 13 Cal. 152-3.)

         3. The Stateis not bound by the general language of the act, not being named. (Ang. on Limitations, sec. 37; Sedg. 105; U. S. v. Hoar, 2 Mason, 312, expressly in point.)

         4. The probate of the will is only conclusive, if at all, as to the personal, but not as to the real estate:

         First: The County Judge has the powers of a " Surrogate" or " Probate Judge," by section eight, article six of the Constitution. Taken from the New York Constitution literally, except the addition of the words " Probate Judge." (Art. VI, sec. 14; Dayton Surrogate, 8.)

         Power of our Courts (Probate) to open and receive proof of last wills and testaments. (Belknap, sec. 62, 22.)

         This section does not name " real estate," or " exclusive jurisdiction." In New York, he takes the proof of real and personal estate. (Dayton, 19.)

         In Lansing v. Adams, (17 Cal. 641) the testamentary paper was admitted, though not proved.

         In Castro v. Richardson, the question was not raised, and no brief filed for respondent.

         In Wilson v. Roach, the Court say that the Legislature cannot infringe upon the constitutional powers of the District Court, as a Court of law and equity, under the Constitution, bygranting exclusive jurisdiction to Probate Courts. (4 Cal. 366.)

         And under the organization of a Court of Equity, an issue, without consent, could be directed to try the validity of a will. So proof could be made in a common law Court of the execution of a will.

         There is nothing in the Constitution relating to Probate Courts which takes this original jurisdiction away, or would justify, if it had been done, an " exclusive jurisdiction" over the probate of wills in any other Court.

         III. But it is objected, that the parties to the fraud are not before the Court--they have sold out to innocent persons. These purchasers have not paid the purchase money, and had notice of the fraud.

         Notice before payment of the purchase money is sufficient, though a contract exists. On this question, see Thornburg v. Bevil, 1 Young and Col. 563, and note 1; Potter v. Saunders, Hare, 1; Powell v. Den, 1 Young and Col. 356; Palmer v. Scott, 1 Russ. & Mylne, 399, and note 1.

         Fourth point.

         The seventh point made in appellant's brief is an objection to the bill, for the want of necessary parties. It is said that the legatees, and those holding under them, were necessaryparties to this, or any other proceeding affecting their interests. Patterson v. Supervisors Yuba Co. , 12 Cal. 106, and Hutchinson v. Burr, Id. 103 are cited to support this point.

In answer to this objection, it may be insisted

         1st. That no objection was taken by the executor, McGlynn, in the Court below, by answer or demurrer, to the want of these parties, and that such objection was therefore waived. (Practice Acts, sec. 45.)

         No such point was presented or argued in the Court below, but is now made for the first time, in this Court, on appeal, without an opportunity of allowing the plaintiff below to have brought them in by amendment.

         And, 2d. A conclusive answer to this objection will be found in the nature of the proceeding by information. Only such parties as are in possession need be made defendants. A publication is made, calling on all parties interested, to appear in the case at the expiration of thirty days. The assignees of the legatees made their appearance by answer, setting up their title by purchase. That case is still pending in the Court below, awaiting the trial on information. That is the case the State desires to try, and is the casein which the title of the parties must finally be determined, as well as that of the heirs. The bill in Chancery is only auxiliary to the information, in order to procure the aid of a Court of Equity, whose powers in the proceeding by information were considered of doubtful application. They have not, therefore, anything of which to complain, in any proper sense, more than any other defeated litigants, contending with an adverse decree justly rendered.

         The rule under section forty-five of the Practice Act, and the Chancery rule on the same subject, as to the proper mode and time of making objections to the want of parties, are too well settled to need authorities. The objection may be made in equity by demurrer, plea or answer; and the most that a Court would do where the object of parties was apparent, would be to let the cause stand over in order to make the parties; or if the bill be dismissed under such circumstances, it should be without prejudice. (Story's Eq. Plead., sec. 236, and note 4.) But this is where the objection is properly taken.

         JUDGES: Norton, J. delivered the opinion of the Court. Field, C. J. and Cope, J. concurring.

         OPINION

          NORTON, Judge

         On petition for a rehearing, Norton, J. delivered the following opinion--Field, C. J. and Cope, J. concurring.

         A petition for rehearing has been presented in this case, principally for the purpose of obtaining a decision upon the point whether the State can contest before the Probate Court the probate or the validity of the will after the expiration of one year from such probate. We do not think it would be proper for us to express an opinion upon this point in this case. Our opinion upon that point, whatever it might be, could have no effect in determining the case before us. Where a case is sent back for a new trial, it may be appropriate, though not strictly necessary for the decision of the question of a new trial, to give an opinion upon points that will arise in the Court below, and must be decided to finally terminate the case. But where such an opinion could have no effect upon the case in any stage of it, and was not necessary for our decision, its expression would have been not only superfluous, but, as we think, injudicious. It is doubtful if such an opinion would control the action of another tribunal in another case, or be operative as a judgment in our own Court. The law upon a question does not become settled by the mere opinion of Judges unnecessarily expressed, but only by a decision of the point when being the ground, or at least one of the grounds, of a judgment.

         These reflections are also applicable to another point upon which a decision is asked, to wit: Whether the Law of 1862, giving jurisdiction to the District Courts to set aside a will and the probate thereof in certain cases, can have a retroactive effect. This question does not affect this case.

         Another point, whether, under the effect of the Law of April 19th, 1856, relative to escheated estates, the State was prevented from proceeding for an escheat before the lapse of five years, might in one aspect of the case have been considered by us, but its decision in favor of the plaintiff would not have obviated the necessity of the decision we did make, nor do we see that its decision now would have the effect to end the litigation in this case.

         Rehearing denied.