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State v. McGlynn

Supreme Court of California
Jul 1, 1862
20 Cal. 233 (Cal. 1862)


In State v. McGlynn, 20 Cal. 233, 81 Am. Dec. 118, it was held that the probating of a will was a proceeding in rem, and that the decree admitting a will to probate was conclusive, not only upon the parties who were before the court, but upon all other persons.

Summary of this case from Crall v. Board of Directors of Poso Irrigation District


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         Appeal from the Fourth Judicial District.

         This is an appeal from an order of the District Court, granting an injunction at the suit of the State against John A. McGlynn and A. J. Butler, executors of the last will and testament of D. C. Broderick, deceased.

         The injunction restrains the executors from selling any portion of the estate under an order of the Probate Court heretofore made, requiring the executors to sell the same, or so much as shall be necessary to pay the debts and expenses of administration of the estate; and also enjoins the executors from intermeddling in any manner with the affairs of the estate.

         The sale enjoined was advertised for the thirtieth of November, 1861. On the twenty-ninth of November, 1861, the State filed an information through the Attorney General, Thomas H. Williams, Esq., on the relation of Frank M. Pixley, Esq., for an escheat of the estate, and on the same day filed a bill in equity for an injunction, in aid of the information. The substantial averments of the bill and answer are set forth in the opinion of the Court. The bill was not verified, and the denials of the answer, which was verified, were upon information and belief.

         An order to show cause why the injunction should not issue was served on the morning of the sale, accompanied by a restraining order, and finally, on the thirty-first of December, 1861, the injunction was granted. From this order the appeal is prosecuted.

         The proceedings in the Probate Court were as follows:

         On the twentieth of February, 1860, the will was filed in the Probate Court, with the petition of McGlynn and Butler, praying probate and letters testamentary.

         The usual order for all persons interested, to appear at a certain time named and show cause why the will should not be admitted to probate, was made and duly published, returnable on the twelfth of March, 1860.

         On that day, various persons appeared, by their respective counsel, and claimed to be heirs, and filed their objections in writing, contesting the will on the ground that it was false, simulated and a forgery.

         On the same day, a commission was, by consent of all parties, ordered to be issued to New York city, to take the testimony of the subscribing witnesses to the will.

         All the parties joined in the commission. Interrogatories and cross interrogatories were filed, and the case continued to the eighteenth of June, 1860, to await the return of the commission.

         The commission was returned duly executed, and on the eighteenth of June, 1860, the hearing was commenced.

         The petitioners and the contestants introduced in the Probate Court a large number of witnesses respectively, for and against the validity of the will.

         The contest extended until the eighth of October, 1860. The testimony of a large number of witnesses, besides documentary evidence, was introduced, and after due consideration, on the eighth of October, 1860, the Probate Court admitted the will to probate as genuine, finding the charges of fraud and forgery to be unsupported by the proof.

         Appeals were prosecuted to the Supreme Court, and duly dismissed; and the executors proceeded in the due course of administration, and finally the order of sale above mentioned was obtained to pay the established debts and expenses of administration.

         The complaint and answer each contain a large number of affidavits bearing upon the question of the genuineness of the will, and at the hearing of the application for injunction, many additional affidavits on the same subject were introduced by both parties. Several of these affidavits go to show that one McDonnell, now residing in San Francisco, and his two sisters, residing in Ireland, are first cousins to the deceased, and claim to be his heirs; and in the Supreme Court these alleged heirs were, by their attorney, heard in argument in opposition to the claim of the State.

         The amendatory act concerning Escheated Estates, referred to in the opinion, was approved March 3d, 1862, and will be found in the laws of 1862, chap. 33, p. 27.


         As appears from an examination of the pleadings, this is not a bill of review; for such a bill must be filed in the same Court in which the original decree was rendered.

         Neither is it a bill in equity to obtain a new trial in the Probate Court, or rehearing in that tribunal. It seeks no such relief. It contemplates no action in that Court in any event. It is an original bill in chancery, and its object is to set aside a judgment and decree of the Court of Probate, and all its orders following and carrying out that decree, for fraud, and to declare a will adjudged valid, and ordered to probate by that decree, fraudulentand void.

         In other words, it seeks in the guise of a bill in equity in the District Court, to review and reverse the decrees and judgments of the Court of Probate in matters exclusively within the jurisdiction of that tribunal.

         The bill is said to be filed in aid of a proceeding at law by information at the suit of the State, to declare the estate of the decedent, Mr. Broderick, an escheat.

         The allegations of the bill are essentially the same as those of the information, and are intended to get rid of the solemn judgments of a competent tribunal, confessedly conclusive in the legal proceeding.

         The bill is not verified, but it is claimed that, under the provisions of the Practice Act as to pleadings, this being a proceeding on behalf of the State, it is to be treated as a sworn bill.

         We shall not stop to inquire into the correctness of this assumption, nor into the question of the right of the State to an injunction in aid of an information for an escheat in any case. It might, perhaps, be contended with great force, that the remedies intended to be given to the State are all provided for in the escheat laws.

         The Government is not in the position of anowner, and has no interest, except upon a failure of all other rights, when ascertained by a proceeding by information in the nature of an inquest of office. Until then, she has none of the rights or remedies of the ordinary owner, except as they may be given to her by the express provisions of the law.

         But, however this may be, we think this proceeding cannot be maintained in any event upon principle or authority.

         I. The allegations of the bill are founded entirely upon information and belief.

         It is well settled that such a bill, so sworn to, cannot be made the basis upon which to ask the interposition of a Court of equity by an injunction.

         It is unnecessary to cite authorities to sustain a proposition which has become an elementary principle of chancery law and practice.

         II. The bill itself upon its face, and the answer and affidavits, show conclusively the existence of nonresident foreign heirs, claiming this whole estate as the next of kin to Mr. Broderick. Nay, that they are even now prosecuting their claim in the Probate Court.

         This is fatal to the case of the State.

         The Act of 1856 suspends and postpones all claim upon the part of the Statefor five years. That time is allowed the foreign heir within which to come in and maintain his rights.

         The State has no interest, and no right to interfere by any proceedings until after five years have expired. Even then the State can only proceed in the manner pointed out by the act for the sale of the property--the proceeds are to be paid into the treasury, and must remain there for another period of five years, within which the heir may still come in and present his claim. Only after the expiration of this extended period does the right of the State begin to operate. It is believed that the case of The People v. Rogers, reported in 13 Cal. 158, is conclusive on this proposition, and renders further argument unnecessary. That case presented the precise point involved in this, and determines the very question we are now discussing.

         III. This bill, under our Constitution and laws, cannot be maintained.

         The Court of Probate has, by the Constitution and by the statute law, original and exclusive cognizance of wills and their probate. Its decisions on this subject are final and conclusive upon all Courts and upon all persons.

         They can only be reversed on appealin the manner provided by law. (Art. 6, secs. 6, 8, Const.; Zander v. Coe, 5 Cal. 230; Castro v. Richardson, 18 Id. 478; see the provisions of our Statute, passim .)

         Nor does this doctrine militate in the least against the constitutional jurisdiction of the District Court. As said by the Supreme Court in Zander v. Coe: The language of the Constitution, in distributing the judicial power among the several Courts, is almost identical when speaking of the District and the Probate Courts. The grant of power is the same in one case as in the other, and is equally exclusive in the one as in the other. Each is necessarily a limitation upon the other. Both are constitutional Courts. Neither occupies a position of inferiority in relation to the other. In their respective orbits they are independent.

         The Probate Court, within its sphere, is not unequal to the District Court, and its decrees are subject to no review, except by the Court of last resort.

         Such is the doctrine of Zander v. Coe and Pond v. Pond, 10 Cal. 495; and Deck Estate v. Gherke, 6 Id. 669.

         No appeal lies from the Probate to the District Court. The District Court has no appellatepowers.

         The decrees of the Probate Court in a matter within its exclusive cognizance cannot be reviewed by the District Court, under the guise of a bill in equity upon allegations of fraud.

         This Court has decided that the Legislature cannot constitutionally give the District Court powers in their nature appellate over the decrees of the Probate Court.

         The powers of the Probate Court cannot be taken away and given to another tribunal under any pretense. Under similar constitutional provisions, the Supreme Courts of Mississippi and Alabama have held in accordance with the decisions of this Court. (2 How. [Miss.] 806-856; 7 Id. 147; 3 Id. 252; 32 Ala. 681.)

         Upon authority, it is sufficiently apparent that a direct attempt by the Legislature to give to other Courts the jurisdiction which peculiarly belongs to the Probate Court by the Constitution, would be nugatory and void. But in truth, no difficulty can grow out of the provisions of the Constitution in relation to the grant of jurisdiction to the District Court, because the probate of wills was never a subject of equity jurisdiction. This will sufficiently appear in the course of this brief. The general grant ofequity powers to the District Court by the Constitution could, therefore, never be construed to affect or take away the special grants to the Probate Court.

         IV. The District Court, as a Court of Chancery, has no jurisdiction of the subject matter of this bill, and no power to set aside the decree of the Court of Probate establishing the will in question, or to declare the will void for fraud or any other cause.

         The doctrine is well settled in England, as the following English authorities clearly show: Archer v. Mosse, 2 Vernon, 8; Nelson v. Oldfield, 2 Id. 76; 3 Merivale, 71; Gingell v. Horne, 9 Simons, [16 E. Ch.] 544, 548-9; Kenrick v. Bransby, 3 Brown P. C. 358; Lyon v. Beaver, 1 Turner & Russ. 63 [11 E. Ch. 39]; Jones v. Jones, 7 Price Exch. 663; Jones v. Frost, Jacobs, 466 [4 E. Ch., Cond., 218]; Pemberton v. Pemberton, 13 Vesey, 246; Duchess of Kingston's Case, 2 Ambler, 756; Allen v. Dundas, 3 D. & East, 131.

         The American cases are still more clear and decisive. It is considered as well settled, that a will cannot be set aside in equity on the ground of fraud.

         The decree of the Probate Court establishing a willis conclusive. It operates in rem; it is binding and conclusive in all Courts and places; all the world are parties. A decree setting up a will operates upon the thing itself, defines and creates its status, and the judgment binds and concludes the whole world.

         The authorities are overwhelming to this proposition. Indeed, we have not found a single case to the contrary. Not one of the cases cited by the counsel on the other side at all questions the doctrine, while many of them directly affirm it. (Gaines v. Chew, 2 How. [U. S.] 645-6; Burger v. Hill, 1 Bradford, 373; Whitfield v. Hurst, 3 Iredell Eq. 242; Muir v. Trustees, & c., 3 Barb. Ch. 481; Tibbatts v. Berry, 10 B. Monroe, 474-5; Tompkins v. Tompkins, 1 Story, 547; Laughton v. Atkins, 1 Pick. 547-8; Tarver v. Tarver et al., 9 Pet. 174; Goold v. Goold, 3 Story, 536-7 [cited by Respondent]; Gelston v. Hoyt, 3 Wheaton, 246; Bogardus et al. v. Clark, 1 Edw. Ch. 266; Same case on appeal, 4 Paige, 625; Clarke v. Fisher, 1 Id. 176; Colton v. Ross, 2 Id. 398-9; Dayton on Surrogates, 168; Deslonde & James v. Darrington's Heirs, 29 Ala. 95; Ballou et al. v. Hudson et al., 13 Gratt. 674, 682; Coulter's Executors v. Bryan, 1 Id. 76; Hunt et al. v. Aer et al., 28 Ala. 593; Wills v. Spraggins, 3 Gratt. 567, 574; Parker's Executors v. Brown's Executors, 6 Id. 554; Robinson v. Allen et al., 11 Id. 787; Sterns v. Sterns, 25 Miss. 531-2; Sever v. Russell, 4 Cushing, 517; Jennison v. Hapgood, 7 Pick. 7; Adams v. De Cook et al., 1 McAllister, 253; Fortune v. Buck et al., 23 Conn. 8; Nalle v. Fenwicke, 4 Randolph, 588-9; Schultz v. Schultz et al., 10 Gratt. 368, 377; Wells' Will, 5 Littell, 273; Hardy v. Hardy, 26 Ala. 524; Ingram v. Ingram, 2 Texas, 590; Roberts v. Stewart et al., 2 Swan, 165; Harrison et al. v. Morton & Brown, Executors, 2 Id. 461; 1 Jarman on Wills, ch. 9, p. 210; Story's Eq. Pl., Secs. 474, 490, 716, 786-8; 2 Ala. 234.)

         Indeed, authorities might be cited without limit in support of the doctrine we are contending for.

         The cases cited by the counsel for the State both from our own and other Courts, as to the powers of a Court of Chancery in relation to opening accounts of executors and administrators settled in the Probate Court, have no application to the propositionwe are discussing. Accounts were subjects of original chancery jurisdiction; the probate of wills never was. This Court has limited the doctrine to the precise case of accounts, basing themselves upon the old cases, and have intimated strong doubts of its correctness as an original question under our Constitution and laws. (See the case of Deck et al. v. Gerke, Administrator, et al., 12 Cal. 433.)

         The precise distinction we contend for is expressly held in the case of Gould v. Gould, cited by the counsel from 3 Story's Rep. 536-7.

         The authorities which we cite are full and conclusive of the whole question.

         V. By the express provisions of our statute, the decree of the Probate Court establishing the validity of the will, after the expiration of one year from the date of its rendition, becomes forever conclusive and binding upon all the world, and can never again be questioned in any Court or in any place. (Wood's Dig. 392, ch. 2, Proof of Wills, & c.)

         The proceedings to prove a will, being in rem, all interested are parties, and may in fact make themselves so.

         By our law, publication brings in the State, as well as all others interested.

         Anyone interested appearing and contesting the probate, the contest enures to the benefit of all.

         The State can be in no better position than the heirs. If the heir is bound by the decree, surely the State must be.

         Would it be pretended that any heir could now file and maintain such a bill as this?

         Under our system, the whole subject of the probate of wills is given to the Probate Court. No controversy as to their validity is provided for, or can be had in any other tribunal. Every possible case which might invoke the aid of a Court of Equity is provided for in the Probate Act. Our statute, for the very purpose of giving an opportunity for a reinvestigation upon allegations of fraud, or otherwise, allows one year. It must be done, if at all, within that time. There must be some period when litigation of a will must end. Our Legislature has thought proper to fix one year as the limit beyond which there shall be no further question of the validity of the will and of its probate.

         Other States have fixed different periods for the same object, and have permitted by express legislative provisions, an appeal to a Court of Chancery within a given time. After the expirationof that time, no further agitation of the subject is permitted. Such has been the decision wherever the question has been made. (Hardy v. Hardy, 26 Ala. 524; Ingram v. Ingram, 2 Texas, 590; Nalle v. Fenwicke, 4 Randolph, 588-9; Bank of Hartford Co. v. Waterman, 26 Conn. 330.)

         The counsel for the State seemed to suppose this provision of our statute was to be considered a Statute of Limitations, and the prerogative of the Government excepted her from its operation.

         If this were so, it would not aid the case of the State. The result would only be that the bar would be inapplicable, and the State at liberty to proceed in the Probate Court without regard to the lapse of time. It could not give the District Court, as a Court of Chancery, jurisdiction. The allegation of the bill is, that this very lapse of the year bars the State from proceeding in the Probate Court, and takes away the jurisdiction of that tribunal, and therefore the State resorts to a Court of Equity.

         The two propositions destroy each other, and the argument is a perfect " felo de se ."

         If the Probate Court is bound, so is the District and all other Courts, by the express provisionsof the law.

         But in truth, this is not a Statute of Limitations at all, but a provision intended to secure absolute verity to a solemn decree of a Court of competent and exclusive jurisdiction, equally conclusive upon all Courts and upon all parties.

         The bill further attempts to avoid the statute bar, by allegations of fraud. The sufficiency of these allegations will be considered hereafter.

         If they are to be considered sufficient to avoid the bar of the statute in the District Court, they would equally avoid it in the Probate Court itself. This would leave it open to the State upon a proper case to seek relief by a revocation of the decree in that tribunal, and in that only.

         The same answer suffices for the suggestion of the counsel for the State, that the decree is opened by the petition of the McDonnell heirs in the Probate Court within the year. If so, the State has no standing upon this record, and had no right or necessity to file this bill. Upon the theory of the counsel, the whole matter is now at large in the Probate Court, and it is perfectly competent for the State to intervene in that tribunal for its interests.

         This position is assumed by counselas an answer to the proposition that the probate decree is final and conclusive in all other tribunals. We content ourselves with showing that if true and sound, the argument does not help the case of the State.

         The State brings herself within neither of the exceptions pointed out in the law itself, and is as effectually concluded by the express provision of the statute as any other suitor.

         VI. Independent of all these questions which we have been discussing, and which in our judgment are entirely fatal, this bill, upon its own allegations, makes no case entitling the State to an injunction upon well settled principles of equity practice. Nor is it aided in any degree by the affidavits submitted in its support.

         In the language of this Court in the case of Ely v. Frisbie: " The injunction should have been denied on the uncontradicted allegations of the complaint itself."

         The bill shows absolute title in the defense. Until set aside, that title is conclusive. No injunction could, therefore, be properly issued upon the case as made in this record, and we now proceed to state briefly our objections under this head.

         1. All the pretended equities of the bill areconclusively answered and denied. (Gardner v. Perkins, 9 Cal. 553; Burnett v. Whitesides, 13 Id. 156; Ely v. Frisbie, 17 Id. 258-9; Curtis v. Sutter, 15 Id. 263; City of San Francisco v. Beideman, 17 Id. 443; Blatchford v. N.H. R. R. Co., 5 Abbott, 276.)

         2. The District Court cannot issue an injunction restraining the execution of the judgments or orders of another concurrent or coordinate Court. The Court having the control of the judgment or order has the exclusive right to grant the necessary relief. (8 Cal. 27, 35, 71, 271, 521; 9 Id. 77, 614.)

         A fortiori, the judgment of a tribunal having exclusive jurisdiction over the subject matter cannot be thus restrained. (Gelston v. Hoyt, 3 Wheat. 246.)

         3. There is not the slightest necessity for the interference of the Court by injunction in this case. Lis pendens filed would answer every purpose, and perfectly protect the rights of the State. The State could in no event suffer loss.

         The defense sets up paramount title, and the validity of that title should be judicially determined before its assertion be enjoined. The State cannot be prejudiced upon her own showing. Such has beenthe uniform language of this Court in all previous cases. (Curtis v. Sutter, 15 Cal. 263; City of San Francisco v. Beideman, 17 Id. 443; Ely v. Frisbie, 17 Id. 258-9.)

         This injunction should, at all events, be modified. The debts of this estate are heavy, and are carrying heavy interest. No matter to whom it may finally go, it must go encumbered with these debts. If the State takes it, she must take subject to the debts. The estate must equally go to administration in the Probate Court, whether owned by the State or by the private citizen. The claim of the Government is to the surplus, and to that only. This can be ascertained in the Probate Court, and nowhere else. (Wood's Stat. 423-4, sec. 1; Public Adm'rs, Id. 51; Acts of 1861, 631, sec. 52.)

         There are no allegations against the validity of any of these debts, nor could there be. No possible danger to the estate can result from a sale; the powers of the Probate Court over the whole subject are ample and well guarded. They are a complete answer to all the charges of the bill with reference to the safety of the property, the fairness of its sale, and its proper administration under the direction of the ProbateCourt.

         That Court has full power to administer every relief which could be desired from a Court of Equity. (See Probate Act, Wood's Stat., and the Amendments of 1861.)

         At all events, then, it is confidently submitted, that this injunction should be so modified as to permit the executors to sell sufficient to pay the debts. All those interested, in the Probate Court, consented to the order, and are still desirous that it should be carried out for the best interests of all concerned.

         4. The allegations of the bill make no case for the interference of a Court of Equity with the decree of the Probate Court, either on the ground of fraud or of newly discovered evidence.

         If this were a bill of review, or for a new trial in the same Court, it could not be maintained.

         Cumulative or impeaching testimony upon precisely the same points previously tried, presents no ground even for a new trial on motion. (Brewer v. Bowman, 3 J. J. Marshall, 493; 1 Johns. Ch. R. 324; Southard et al. v. Russell et al., 16 How. [U. S.] 547; Riddle v. Baker, 13 Cal. 295; 2 Price Exch'r, 3; 9 Id. 34; Jenkins v. Eldridge, 3 Story R. 310-324; Phelps v. Peabody, 7 Cal. 53; 4 B. Monroe, 452; 11 Id. 219-220; 2 Story's Equity, 894-895; Jenkins v. Prewitt, 7 Blackf. 329.)

         The slightest diligence would have put the State in possession of this pretended new testimony. The very trial in the Probate Court was sufficient notice.

         The whole record shows that as much was known on that trial as at the time the State filed this bill, or could have been easily known by the most ordinary diligence.

         Again, this newly discovered testimony would be inadmissible, even if we were now trying the original case. (Bunyard and Wife v. McElroy's Ex'rs, 21 Ala. 315; Roberts v. Tragwick, 13 Id. 78; Walker v. Jones, 23 Id. 453; Snyder v. Ball, 17 Penn. 58-69; Clark v. Morrison, 25 Id. 455-6; Moore v. Allen, 5 Ind. 521; McDaniel's Will, 2 J. J. Marshall, 332; Nussear v. Arnold, 13 S. & R. 328-9; Coalter's Ex'rs v. Bryan et al., 1 Gratt. 86-8, & c.)

         The allegations of fraud in obtaining the decree in the Probate Court are equally insufficient, and present no ground of relief. (4 B. Monroe, 452; 11 Id. 219; Riddle v. Baker, 13 Cal. 295; Huggins v. King, 3 Barb. 619; Foster v. Wood, 6 John. Ch. 90; Vilas et al. v. Jones et al., 1 Coms. 281; Livingston v. Hubbs et al., 3 John. Ch. 124.)

         This bill makes no case within any of the decisions on questions of this character.

         It would be monstrous to overturn the solemn adjudications of Courts at any period of time, however distant, upon such bald and naked pretenses.

         VII. The proper parties are not before the Court, and no injunction could be issued in the present stage of the case; the legatees, and those holding under them by purchase, were necessary parties to this or any other proceeding affecting their interests. (Patterson v. Supervisors of Yuba County, 12 Cal. 106; Hutchinson v. Burr, Id. 103.)

         VIII. But the counsel for the State presented to the Court a recent Act of the Legislature, passed at its present session, and since this case was pending in this Court on appeal, and announced to the Court that he relied upon its provisions as applicable to the points involved in this case.

         We think a very little consideration will dispose of this law.

         1. The act, by its own terms, has no application to existing and pending cases. It has reference to the future, and the future only. " It is well settled, that in the absence of express words to that effect, a law can only operate upon future, and not upon past transactions."

         Courts never presume that the Legislature intended retrospective action, unless forced to the conclusion by express language. This doctrine has been recognized by this Court repeatedly, and needs no citation of authorities to support it.

         2. If we are correct in the legal views of the case, this law cannot possibly affect the rights of the appellants.

         Long before the passage of the act in question, the whole case had gone into final judgment--had become a thing accomplished and forever closed. It was beyond the reach of legislative power; as much so as if it had stood upon the record an hundred years. The most latitudinarian devotee of State rights has never contended for such a power.

         If we are wrong in our views, then, of course, the respondents do not need the aid of this law.

         3. This act is simply an attempt to give the District Court appellate power over the decrees and judgments of the Probate Court, with the right to review and reverse them, under the pretense of the exercise of original chancery jurisdiction.

         This cannot beconstitutionally done, as this Court has already said in the case of Deck's Estate v. Gerke (6 Cal. 669).

         The doctrine of that case is conclusive of the proposition.

         4. The act is unconstitutional and void, for the further reason that it is a legislative attempt to withdraw from the Probate Court a subject matter peculiarly belonging to that tribunal by the Constitution itself, and give it to the District Court; and that, too, after the final action of the Probate Court has been had; nay, even after the decision has been affirmed on appeal to the Supreme Court.

         There is no limitation to the power of the District Court, nor to the time of its exercise. As a Court of original jurisdiction, it is given full power over the decrees and judgments of the Probate Court in all matters involving the validity and the probate of a will. It would directly destroy the distinctions of the Constitution, and break down and subvert the just powers of the Probate Court.

         The authorities already cited in this brief, and particularly those from the 2d, 3d and 7th Howard's Mississippi Reports, and the case of Zander v. Coe, (5 Cal.) lend no countenance to such a doctrine, andin our judgment are conclusive against the constitutional validity of this law.

         We have thus noticed the principal points presented upon this record, and we submit that neither upon the law nor upon the facts can the claim of the State be sustained.

         If the principles upon which the Government maintains this proceeding are judicially recognized and enforced, the consequences upon the property interests of the country would be most appalling.

         It is said that the whole estates of a country must go through the Probate Courts within the limits of an average life.

         The laws have provided a tribunal and a system, well conceived and guarded, for the administration of the estates of dead men. They have carefully provided for their final administration and settlement at a short period.

         In the ordinary course of an administration, within a year or two at most, the property will have passed into the general circulation by sale and distribution.

         Upon the principles contended for by the State, there can be no security to titles. When will the adjudications of our tribunals become final? When will litigation cease, and investigation be foreclosed?

         We see no limitsto the operation of the principle. If the State may come in after the expiration of one year from the final adjudication of the Probate Court, why not within twenty? At any moment, and at any period of time, this terrible right of the State may be brought into active operation at the mere will of the Attorney General. No title is beyond the reach of its operation. No judgment, however solemn, can afford protection.

         The Legislature have, in their wisdom, undertaken to fix a period of time, beyond which there shall no longer be agitation of a matter so important to the safety and certainty of property interests. It remains for this Court to say whether this legislative decree is a mere " brutum fulmen," meaningless and forceless.

         I. On the facts stated in the bill, the State has no title. In the first place, this is not an information of escheat, or any proceeding in the nature of such information, even if that could make any difference. It is simply a present claim to the property, and a consequent claim for the protection of it. But neither title, nor any interest in the property of an estate, nor any control over it, results from the fact of death and the nonexistence of heirs, foreign or resident.

         These facts do not give title, any more than the happening of a condition subsequent without entry, or a cause of forfeiture, or prize, without judgment declaring the forfeiture. The State's title comes from the judgment declaring the escheat, which judgment must be in the regular course of judicial proceedings. Until such judgment the State has no title, and no right to interfere, any more than a stranger. (People v. Folsom's Executors, 5 Cal. 373.)

         There is no difference, as held in the case of Rogers v. The State, (13 Cal. 159) between disturbing the possession of the heir and disturbing that of the administrator or executor, for the right in either case depends on the title of the party seeking to disturb.

         If, under any conceivable circumstances, the State could come in quia timet to enjoin the proceedings of the Courts and their officers, upon the ground that the State might hereafter get a title to the property, this is not a proper proceeding for that purpose, for there is no information, and this is not a bill auxiliary to that object. But the full answer to such a propositionis, that the State has no legal or equitable title, upon which to base such a pretension, but at most a bare expectancy, or possibility, which is not sufficient to base an action upon.

         By the Act of 1856, (concerning escheats) the State has no right, even to an information of escheat, until after the five years allowed by the first section have elapsed.

         There is in this act no inhibition against aliens inheriting or taking by inheritance. They inherit as native born citizens, and are allowed five years within which to appear and claim the inheritance, and a further period of five years thereafter to appear and claim the proceeds thereof, should they not have claimed the estate during the first named period.

         There is no presumption that a decedent has no heirs capable of inheriting. Perhaps the presumption would be the other way, as the fact of nonexistence of heirs would be very unusual and peculiar.

         We have seen that, even in respect to property subject to escheat, the title can only come after inquisition; but here, by the terms of the Act of 1856, no information can be filed until after five years. Even then the information is not for an escheat, but to sellthe property, the proceeds still to belong to the heirs; and only when the heirs fail to appear and claim the property after the extended period, the " estate or proceeds shall be and become the property of the State."

         This section proceeds upon the idea that every estate has heirs, foreign or domestic; for no provision is made for ascertaining whether there be foreign heirs of a decedent, or that the act shall be effectual only upon proof of such foreign heirs. On the contrary, it is scarcely to be presumed that if proof had to be made of the existence of these foreign heirs, that so long a time would be given for them to come forward.

         It is obvious, that if this proof be required, in most instances the property would go to the State, and be disposed of before the heirs knew anything about the facts. In case no heirs came forward, then, the State does not take the property by escheat. It could not do this without inquisition; but it has said (for that is the effect) that no information of any kind shall be filed by the Attorney General until the lapse of five years without claim. It assumes that every decedent has heirs, and it postpones in favor of such heirs whatever titleit might assert to the property until the period of five years, etc. It takes no action to escheat the property, or interfere with it, or claim it, until that time, in order to give all foreigners an opportunity to come in and prove their heirship. Where they do come in, they make proof of their title to inherit, before they can get the property. This shows that the postponement does not come from any proof of heirship, but is provided by the act itself, in order that the necessary opportunity may be given to test the question and wage their claim.

         It is as if the act said: " Whereas, there may be foreign heirs of a decedent leaving property here: now, to enable them to present their claims as such, the State will take no action for a period of five years, and then only on the condition and in the event that the heirs do not come forward," etc. It is apparent, from the whole act, that this is a correct paraphrase; for where the Legislature recognizes the right of the foreigner, and provides for a mode of asserting that right, it must be construed to give whatever facilities and means are necessary for its assertion. But where it is expressly said that the State shall take the propertyas its own, in the event of the nonappearance of the foreign heir, within a period prescribed, this itself defines the period and mode of acquisition of title by the State, and ignores any other mode or period.

         It follows, then, from this view, that the State has no title, and can get none, to interfere, until the expiration of the five years; and then it could only interfere if no heirs have appeared, and in a prescribed mode, for the protection of the property.

         It is no answer to this reasoning, to say that the title would be in abeyance, if there were no heirs, for all this time. It would, under our statute, be in the hands of the officers of the law, the Public Administrators, if no one else, until the event happens which is to give it to the State. But the inconvenience, if any, would be of rare occurrence; and where it did occur, the State would not be much injured by postponing its taking the property for a few years; while if she asserted title at once, great injury would be done, in many cases, to those beneficially entitled to the estate. But it is enough to say that the law has made this provision, and it is for the Courts to follow, not to amend it.

         If weare mistaken in this view, another ground nearly connected with it would seem conclusive. The statute unquestionably makes the fact that there are foreign heirs, at the very least, a qualification and postponement of the title and interference by the State.

         Now, when the State offers to interpose, she must do it in the manner recognized, and in cases provided by law. She cannot claim to do this in the face of a provision of statute denying the right to interfere. If there be even a claimant to the heirship, and he a foreigner, the fact of claim is enough to cause this postponement, that the claimant have an opportunity to present his claim. The right of the State does not attach until the period elapses, and he fails to appear and to prove his claim. When, therefore, the bill shows (as in this case) that there are claimants, it shows that the title is not in the State, and cannot be until the period and event before mentioned. The State does not in such cases take the title, or any right to interfere, until the time elapses and the alleged heir fails to show his right. The State interferes even then in a qualified manner, the ground being that no one else claims, or claiming, has made good the claim.

         The claim of a foreign heir is a fact which, being admitted in the bill, is itself a clear and conclusive showing that the State cannot, until after the five years, take any action, or exercise any control over the property.

         It would be of no use to give a party five years to establish his title, and then to decide, in limine, that he had none, and dispose of the property as if he had none. It is, in other words, the result of the inquiry--an opportunity afforded the foreign claimant--which gives the State its title; the provision being as if the language were: " Whenever an estate is claimed by foreigners, as heirs, then the claimants shall have five years to prove their claim; if they prove it, they take it as of original right; if they do not prove it in that time, then the State may dispose of it," etc. The State only taking because, and where it is in this manner shown, that there are none others to take it by the rules of descent. These preliminary steps are absolutely essential to taking inquisition or office; and the State has in such a case neither title nor pretense of title, nor any right to, or any connection with, the property, and has no power to disturb it or interfere with it.

         II. Our attention has been called to a recent act, amendatory of the law concerning escheats, passed at the present session of the Legislature.

         This Act does not affect the views we have taken of the law of the case; but if it did, we say that it has no effect, and cannot have any, upon this case. The effect of the law is upon future cases, not those passed on, or pending. " All cases where the Attorney General files (hereafter) an information" --not where he has filed an information, but where he does file an information, etc. The very terms of the law exclude any retrospective effect.

         In the case of Grimes' Estate v. Norris, (6 Cal. 621) this Court says: " It is well settled, that in the absence of express words to that effect, a law can only operate upon future, and not upon past transactions."

         To the same point, see the authorities cited by appellants in their brief in that case.

         But we go further and say, that if this law be retrospective, and so far as it is retrospective, or intended to give the District Court jurisdiction over causes before trial, or disposed of, in the Probate Court, it is unconstitutional.

         Ajudgment is but a contract, be it upon a will or upon any other fact or state of facts. The judgment in the Probate Court in this case, upon the will, had become final. The law then proposes to infuse into it new elements of dissolution which did not exist at the time of its rendition, or of its becoming final, and to that extent is impairing the obligation of contracts.

         By the Acts of 1855, (p. 300) section two hundred and ninety-four of the Act to Regulate the Estates of Deceased Persons was amended, so that " issues of fact joined in the Probate Court shall be certified by the Probate Judge to a District Court of the same county for trial, on the application of any person interested in or to be affected by the decision thereof in the cases following," etc.

         Under this law, in the case of Deck's Estate v. Gherke , 6 Cal. 669) this Court decided that the refusal of the Probate Court to transfer to the District Court for trial certain issues of fact, which had already been tried and decided by the Probate Court, was correct, and say: " So much of the Act of ___ 1855, as provides for the transfer to the District Court of issues of fact already decided in the Probate Court, is unconstitutional and void. As the power to try de novo issues which have been tried and decided, necessarily includes the power to reverse or modify such decisions, the effect of the Act would be indirectly to confer appellate jurisdiction, which, under our Constitution, the District Courts cannot exercise."

         This law seeks to do the same thing that was attempted by the law of 1855: to try anew a cause before disposed of in the Probate Court--to involve in those cases new elements and questions, not before involved in them--and for the same reason given by the Court in that case, is unconstitutional.

         Hoge and Wilson, for Appellants.

         J. B. Haggin, for the Heirs at Law.

          Gregory Yale, for Respondent.

         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.


          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.

Summaries of

State v. McGlynn

Supreme Court of California
Jul 1, 1862
20 Cal. 233 (Cal. 1862)

In State v. McGlynn, 20 Cal. 233, 81 Am. Dec. 118, it was held that the probating of a will was a proceeding in rem, and that the decree admitting a will to probate was conclusive, not only upon the parties who were before the court, but upon all other persons.

Summary of this case from Crall v. Board of Directors of Poso Irrigation District

In The State v. McGlynn (20 Cal. 233) the Court say: " The law upon the question does not become settled by the mere opinion of Judges unnecessarily expressed, but only by a decision of thepoint, when being the ground, or at least one of the grounds, of a judgment."

Summary of this case from Table Mountain Tunnel Co. v. Stranahan
Case details for

State v. McGlynn

Case Details


Court:Supreme Court of California

Date published: Jul 1, 1862


20 Cal. 233 (Cal. 1862)

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