This appeal is only from the order refusing a new trial, and we cannot change the judgment to make it consistent with the findings. The judgment is, therefore, reversed and a new trial ordered. X

MCFARLAND, J., and HENSHAW, J., concurred.

[No. 19583. Department Two.-September 5, 1895.]

MARIA M. LANGDON, ADMINISTRATRIX, ETC., APPELLANT, v. CECELIA BLACKBURN ET AL., RE

SPONDENTS.

WILLS-FRAUD-FORGERY-TRUSTS-EQUITY JURISDICTION.-A court of equity has no jurisdiction to avoid a will, or set aside the probate thereof, on the ground of fraud, mistake, or forgery, this being within the exclusive jurisdiction of the courts of probate; and equity will not give relief by charging the executor of a will or a legatee with a trust in favor of a third person alleged to have been defrauded by the forged or fraudulent will, where relief could be afforded in the court of probate by refusing probate of the will in whole or in part, or by contesting the will in that court. ID.-PROBATE OF WILL-PRESUMPTION OF NOTICE OF APPLICATION-CONTEST OF WILL.-Where a complaint in equity seeking to avoid the probate of a will alleged to have been fraudulent and forged, and under which the defendants are alleged to have conspired together to defraud the plaintiff's intestate out of one-fourth interest in the estate, and to obtain a decree probating the forged will, and distributing the estate to themselves, to the exclusion of plaintiff's intestate, and fraudulently concealed the fact from her for a number of years, it must be presumed, in the absence of an allegation to the contrary, that a proper notice of the application to probate the will was published and sent out as required by law, and that plaintiff's intestate, who was then residing in the state, received by mail a notice of such application; and, being thus notified, it became her duty, within a year at least after its probate, to make inquiry as to the validity and contents of the will; and, after the lapse of that period, the will cannot be contested in equity on the ground of alleged fraud and forgery.

ID. EXTRINSIC OR COLLATERAL FRAUD.-Conceding, without deciding, that the rule as to setting aside a former judgment for extrinsic or collateral fraud applies to judgments or decrees of the probate courts, a complaint in equity seeking to annul the probate of a will and a decree of distribution thereunder, which is filed several years after the distribution of the estate, and in which it is alleged that, shortly after the death of the decedent, the defendants, to carry out their fraudulent purpose, caused the son of plaintiff's intestate to visit her, and inform her that her entire interest

in the estate was only a small sum, which she believed to be true, and received said sum from the defendants as her share, relying upon the false and fraudulent representation thus induced and made, and that she rested on such assurance until after the time for the contest of the will in the probate court had elapsed, but not alleging that the son said anything to plaintiff's intestate about the will or its terms, or the probate thereof, or advised or suggested that it was unnecessary for her to be present at the hearing, or to employ counsel to represent her thereat, or to make any inquiries about the will or estate, does not show such extrinsic or collateral fraud, within the meaning of the rule, as will enable the plaintiff, as representative of her estate, to claim the relief asked for.

APPEAL from a judgment of the Superior Court of San Luis Obispo County. V. A. GREGG, Judge.

The facts are stated in the opinion.

Thompson & Thompson, for Appellant.

The probate of a will is no bar to an action to set aside the judgment as having been fraudulently obtained. (Freeman on Judgments, sec. 486; Hayden v. Hayden, 46 Cal. 332, 340, 341; Olivas v. Olivas, 61 Cal. 382; 1 Perry on Trusts, secs. 166, 171; De Leon v. Higuera, 15 Cal. 483; 1 Black on Judgments, sec. 356, et seq; Watkins v. Bryant, 91 Cal. 504, citing Pomeroy's Remedies and Remedial Rights; Harrigan v. Mowry, S4 Cal. 456.) Courts of equity have power to set aside a decree fraudulently obtained when the fraud is extrinsic and collateral to the matter tried. (Bergin v. Haight, 99 Cal. 52; United States v. Throckmorton, 98 U. S. 65, 66; Ex-Mission Land and Water Co. v. Flash, 97 Cal. 610; 1 Black on Judgments, 370; Crowther v. Rowlandson, 27 Cal. 377; Boyd v. Blankman, 29 Cal. 20; 87 Am. Dec. 146; Curry v. Allen, 34 Cal. 254; Marshall v. Buchanan, 35 Cal. 268; 95 Am. Dec. 95; Broder v. Conklin, 77 Cal. 331; 1 Perry on Trusts, sec. 229.)

Graves & Graves, for Respondents.

A court of equity has not jurisdiction to avoid a will or to set aside the probate thereof on the ground of fraud, mistake, or forgery. (Broderick Will case, 21

Wall. 504; State v. McGlynn, 20 Cal. 235; 81 Am. Dec. 118; McDaniel v. Pattison, 98 Cal. 95; Fealey v. Fealey, 104 Cal. 354; 1 Perry on Trusts, 2d ed., sec. 182; Pico v. Cohn, 91 Cal. 129; 25 Am. St. Rep. 159; United States v. Throckmorton, 98 U. S. 61; Hecht v. Slaney, 72 Cal. 363; Manning v. San Jacinto Tin Co., 7 Saw. 433; Burling v. Newlands, opinion filed Cal., Jan. 5, 1895; In re Griffith, 84 Cal. 113; Allen v. Currey, 41 Cal. 321; Wood v. Carpenter, 101 U. S. 140; Badger v. Badger, 2 Wall. 95; Marsh v. Whitmore, 21 Wall. 184; 2 Perry on Trusts, 2d ed., sec. 865; Wood on Limitation of Actions, 416, and notes).

BELCHER, C.-This is an action to enforce an alleged trust.

The averments of the complaint are mostly upon information and belief, and are in substance as follows:

James H. Blackburn died in the county of San Luis Obispo on January 27, 1888, leaving a large estate, and as his only heirs at law two brothers, one sister, and the children of a deceased sister. The defendant Daniel D. Blackburn, who was and is the husband of the other defendant, Cecelia Blackburn, was one of the surviving brothers, and Maria Kirshner, the plaintiff's intestate, who died May 5, 1893, was the surviving sister.

Long prior to January 13, 1888, the said James H. Blackburn became weak physically and mentally, and wholly subject to the will and control of defendants. He had no volition, mind, or will of his own, and he so continued until he died. While he was in this condition the defendants conspired together to defraud the said Maria Kirshner, and to cheat her out of her onefourth interest in the estate of her brother, and to get the whole estate for themselves. To that end they procured and caused to be drawn up in legal form a paper which purported to be the will of said James H. Blackburn, giving his property to them, and omitting all mention of his said sister. On the said thirteenth day of January they caused him "to be raised up in his bed

(to which he was then confined in mortal sickness), a 'pen placed in his hand by a person other than himself, and who was in defendants' employ, and upon defendants' order, direction, and procurement, and not otherwise, without the will, volition, or knowledge of said James H. Blackburn, the said other person moved the pen, and caused it to write the name of said James H. Blackburn, as being his signature to said purported will."

At the time when his signature was so written upon said purported will "the said James H. Blackburn was unconscious; he knew nothing whatever of what was being done; he had neither will, purpose, nor volition in said matter; he did not, and he never did, sign said purported will"; he never directed or authorized its preparation, and "he never in anywise dictated or suggested its terms, or any of them, or knew any thing about it, or of its existence."

Defendants thereupon took the said forged will, and kept it until after Blackburn died. On February 6, 1888, they caused the same to be presented to the superior court of San Luis Obispo county for probate, and thereafter such proceedings were had that on the 28th of that month an order was made admitting it to probate as and for the last will of said deceased. Afterward, by procurement of defendants, the property of the estate, of the value of about one million dollars, was distributed to and taken and held by them. Plaintiff's intestate was entitled to one-fourth of the property of the estate, but was awarded no part of it.

Plaintiff's intestate was about sixty-five years of age, and quite ignorant as to legal and business matters. She resided in Yuba county, more than four hundred miles from San Luis Obispo county, and as to all of the before recited facts in regard to the said pretended will she was by the said defendants purposely, willfully, and carefully kept in ignorance, until about seven months before she died, when she first learned of the existence of

said facts, and that she had been robbed by said proceedings.

Shortly after the death of Blackburn, the defendants, to carry out and effectuate their scheme to deprive Mrs. Kirshner of her share in the estate of her brother, and to prevent her from making inquiries in the matter, employed and hired one Henry Findley (her son by her first marriage) to visit her, and tell her that her entire interest in the estate of her deceased brother was the sum of three thousand dollars only. By their procurement, and under their employment, Findley did visit his mother at her home in Yuba county, and did tell her that her interest in her brother's estate was three thousand dollars, and no more. She believed the statements of her son, and relied upon them as true. Thereupon, as a part of their scheme to defraud Mrs. Kirshner, and to cheat her out of her share of the estate, defendants paid over to her the said sum of three thousand dollars, which was all she ever received from the said estate.

"In their said fraudulent purpose defendants succeeded; misled by her said son and his false statement aforesaid, she, the said Maria Kirshner, did believe that the $3,000 by defendants paid her was her full share of the estate, and accordingly she made no inquiry in the premises, and knew nothing of said probate proceedings.

"But for said false statement, her reliance thereon, and the payment of said money to her, she, the said Maria Kirshner, would have had her suspicions aroused; would have made inquiries in the premises; have discovered that said purported will was a forgery, and would have opposed the probate thereof."

By this fraudulent scheme and its accomplishment defendants received and converted to their own use property of the value of about two hundred and fifty thousand dollars, which should and otherwise would have come to said Maria Kirshner during her life, and now properly belongs to her estate.