Stead v. Curtis

• Decision Date: 05 May 1913
• Docket Number: 1,899.
• Citation: 205 F. 439
• Parties: STEAD et al. v. CURTIS et al.
• Court: U.S. Court of Appeals — Ninth Circuit

205 F. 439

STEAD et al. v. CURTIS et al.

No. 1,899.

United States Court of Appeals, Ninth Circuit.

May 5, 1913

Rehearing Denied July 7, 1913. [Copyrighted Material Omitted]

Horace W. Philbrook, of San Francisco, Cal., for appellants.

John S Partridge, of San Francisco, Cal., for appellees Jean McGregor Boyd and others.

J. C Campbell, W. H. Metson, F. C. Drew, C. H. Oatman, J. A MacKenzie, and Walter Shelton, all of San Francisco, Cal., for appellees Isabella M. Curtis and others.

C. Irving Wright, of Oakland, Cal., and Charles Page, of San Francisco, Cal., for appellees Edward Hopkins and John F. Boyd.

Mountford S. Wilson and Charles H. Lovell, both of San Francisco, Cal., for appellee Board of Trustees of Leland Stanford Junior University.

F. A. Cutler, for appellee Regents of University of California.

Before GILBERT and ROSS, Circuit Judges, and DIETRICH, District Judge.

DIETRICH District Judge.

The manner in which the questions arise, and the principal facts involved, are disclosed in the original opinion and the opinion upon petition for rehearing (191 F. 529, 112 C.C.A. 463); a formal preliminary statement will therefore be dispensed with. Subsequent to the entry of the order denying a rehearing, the court, yielding to the appellants' insistent claim that their contentions were misunderstood, and that an opportunity should be given for further oral argument, vacated the order and granted a rehearing; the whole case has now been resubmitted.

At the conclusion of a comprehensive summary of the contents of the bill and an analysis of the voluminous brief filed in support of their appeal, the appellants, in their petition for rehearing, assert that the record exhibits 'five independent grounds, on each of which and by virtue of the law, the pretended judgment of probate,' to vacate which the suit was brought, should be declared void and set aside. In the main we have chosen to confine our consideration to these five several grounds, and shall pursue the order in which they are stated and discussed in the petition.

First. The first point is strictly jurisdictional, and is of primary importance; it is the question whether or not, in the state of California, a court, in the exercise of its general equity jurisdiction, may set aside a judgment of probate for fraud. For the sake of clearness it may be briefly stated that under the California Constitution of 1849 probate jurisdiction was vested in what were called county courts, and general equity jurisdiction in district courts, and that under the present Constitution both branches of jurisdiction, while remaining distinct, are administered in what are now known as superior courts. In re Davis' Estate, 136 Cal. 590, 69 P. 412. We are here concerned only with general equity as distinguished from probate jurisdiction. And as further defining the issue, it is to be noted that it is in no wise affected by the fact that the suit is prosecuted in a federal court; the requisite diversity of citizenship and value of the matter in dispute appearing, it is assumed that the jurisdiction of this court is, in the premises, quite as broad as that of a superior court. The concrete question, therefore, is whether a superior court of the state of California may, upon proper application, and in the exercise of its general equity jurisdiction, vacate a judgment in probate for fraud.

It is conceded to be a universal rule that in the absence of statutory authority equity does not set aside judgments of any kind for intrinsic fraud, and a general rule, that it will lay hold of and nullify judgments for extrinsic fraud. To this latter general rule, however, judgments in probate as a class constitute a widely recognized exception. The principle was stated in our opinion upon the former hearing (191 F. 534, 112 C.C.A. 463), and we then also held that in the California courts it was recognized as a part of the local law. Case of Broderick's Will, 21 Wall. 503, 22 L.Ed. 599; State v. McGlynn, 20 Cal. 233, 81 Am.Dec. 118. Upon further consideration, we find no reason to recede from this conclusion. We are unable to yield to the view that only intrinsic and not extrinsic fraud was considered in the McGlynn Case. The court entered upon an elaborate discussion, not of a general rule, but of an exception thereto, and if only intrinsic fraud was thought to be involved, the discussion was wholly gratuitous, for there was no contention, and probably could be none, that any judgment would be set aside for intrinsic fraud. In the concluding part of the opinion the court uses the following language:

'At the present day, it would not be a greater assumption to deny the general rule that courts of chancery may set aside judgments procured by fraud, than to deny the exception to that rule in the case of probate decrees.'

Surely by 'fraud,' as the term is here employed, only fraud extrinsic was meant, for admittedly there was not then, nor has there ever been, any rule that courts of chancery will set aside judgments of any character for fraud intrinsic. While it may be conceded that in no subsequent decision has the California court expressed a wholehearted approval of the doctrine of this case, and upon the other hand has shown a disposition to limit its application to judgments admitting wills to probate, so far as we have been able to discover, the decision has never been modified or criticised, and must therefore be accepted as an authoritative declaration of the existing local law. Certain cases, of which Olivas v. Olivas, 61 Cal. 382, Baker v. O'Riordan, 65 Cal. 368, 4 P. 232, Sohler v. Sohler, 135 Cal. 323, 67 P. 282, 87 Am.St.Rep. 98, and Bacon v. Bacon, 150 Cal. 477, 89 P. 317, are representative, may, upon first glance, appear to be to the contrary, but upon analysis it will be seen that they do not extend to the probate of wills at all, but establish the rule only that where a decree of distribution is procured by fraud a court of equity will defeat the wrongdoer by impressing upon the property wrongfully distributed a trust in favor of the rightful heir or devisee. That this rule is not necessarily in conflict with the doctrine of the McGlynn Case is made plain by the following extract from the opinion in Bacon v. Bacon, supra:

'It is urged, with respect to the jurisdiction, that decrees of distribution, being a part of the same probate proceeding as the decree probating the will, must be governed by the same rule, and that, as in State v. McGlynn, 20 Cal. 234, 262, 81 Am.Dec. 118, and Kieley v. McGlynn (Broderick's Will), 88 U.S. (21 Wall.) 503, 22 L.Ed. 599, it was decided that decrees probating wills are not subject to review in equity for fraud or mistake, it would follow that a decree of distribution cannot be so reviewed. In view of the decisions we have cited to the contrary, this proposition is clearly untenable. Furthermore. the rule denying such power to review the probate of a will, while it is declared by the above decisions, and perhaps by the greater number of decisions elsewhere, is universally admitted to be an exception to the general rule that all final judgments are subject to such attack. The reasons given in support of the exception are generally declared in the opinions to be unsatisfactory and illogical, and the discussions usually end with the statement that, whether for good reasons or not, the exception is firmly established, and upon that ground must be adhered to. An exception so poorly supported by reason should not be extended to a new class of cases. ' See, also, Tracy v. Muir, 151 Cal. 363, 90 P. 832, 121 Am.St.Rep. 117.

But the contention pressed by appellants with the greatest confidence is that the rule of the McGlynn Case, assuming that we have rightly interpreted that decision, has been abrogated by express statute. While discussed in the opinion on petition for rehearing, the point escaped notice in our original opinion, and we therefore consider it anew. The contention rests upon the assumption that section 4 of an act approved March 3, 1862 (Stats. Cal. 1862, p. 27; Hittell's General Laws of California, p. 358), is a part of the existing statutory law of California, and is valid. The section reads as follows:

'The district court shall have full power, in all cases, to set aside a will obtained by fraud or undue influence, and to declare null and void any paper purporting to be a last will, * * * and to set aside a decree of any probate court admitting to probate any supposed will, when such decree has been obtained by fraud, concealment, or perjury, and to establish a will lost or destroyed.'

The provision is comprehensive and explicit, and, if in force, undoubtedly has the efficacy claimed for it. Its present validity, however, the defendants assail from two different standpoints. It is insisted: First, that when passed it was in violation of the state Constitution, and therefore void; and, second, that, waiving the question of its original invalidity, it has been repealed.

By article 6 of the Constitution of 1849, in force in 1862 district courts were established as courts of general jurisdiction both in law and equity, and county courts were invested with exclusive probate jurisdiction, with the exception only that 'all issues of fact joined in the probate (county) courts' were triable in the district courts. The distinction between general equity and probate jurisdiction is well understood, and in the absence of special definition to the contrary it must be assumed that, as used in the Constitution, the terms 'equity' and 'probate' were intended to convey the meaning, and only the meaning, which they usually import. With the exception of the trial of issues of fact first joined in the county courts and thereafter remitted...