In Re the Estate of Walker ( 1911 )

I concur in the judgment, but I do not think it was essential or appropriate to offer the will for probate in the probate court as such. The exclusive jurisdiction of the probate court is a jurisdiction in rem, the res being the estate of the decedent which is to be administered and distributed with due regard to the rights of creditors, heirs, devisees, legatees, and all the world. For this purpose a method of procedure is provided appropriate to a proceeding in rem, and if it has been regular, and has resulted in a final decree of distribution of the residue of the estate to the heirs of the decedent under a decree which declares that he died intestate, there is no longer any res for the probate court to deal with, and its function is ended. But if it turns out that there was a will, which was suppressed, by an heir for the purpose of defrauding devisees or legatees, or, as in this case, lost and undiscovered until after distribution, the remedy of the devisee or legatee against the heir, who has received what was rightfully his, is in equity to charge the heir as his trustee, and to require him to account and to transfer what he has acquired through the fraud, accident, or mistake. The action in such case is not in rem, but inter partes, and the proper court of equity may determine as between the parties before it whether the will is genuine and duly executed or not, and may in an action between the devisee and a fraudulent spoliator establish the will as against him, upon slighter evidence than would suffice to establish it against all the world in the probate court. I know that what is here said is contrary to what a bare majority of this court decided in McDaniel v.Pattison, 98 Cal. 86, [27 P. 651, 32 P. 805], but I am nevertheless convinced that it is the law and supported by the weight of reason and authority.

The court, however, and the parties in this case were bound by the decision in the McDaniel case to prove the will in the probate court, and since the same person is judge of the probate court and of the court of equity in which, according to my opinion, the question of the validity of the will should properly have been tried, and since the parties in interest had notice and appeared, the irregularity of the proceeding, if irregular, was without prejudice and for that reason, if for no other, the order appealed from should be affirmed.