COOPER, C. About the facts of this case there is no controversy. Louisa Stewart was the daughter of appellant, and the wife of defendant James Stewart, who will herein be called the "respondent." She died on the 12th day of November, 1900, intestate, leaving surviving her the appellant and the respondent as her sole heirs. She left certain real estate, which was her separate property. Prior to her death she had given to appellant all her money and personal property. She left no will and made no provision for respondent. A short time prior to her death she executed and delivered to appellant a deed of gift, and by such deed she intended to convey, and thought that she had conveyed, the real estate in contest to appellant. By a mistake of the party who prepared the deed, the description of the lands intended to be conveyed was not given, but a description of an entirely different tract of land. The object of this action is to obtain a decree reforming the deed by inserting the correct description, and to have the title of appellant quieted against respondent as administrator of the estate of Louisa Stewart, deceased. The real estate vested by operation of law, subject to administration and the payment of debts, in the appellant and respondent in equal proportions. This, therefore, is an action by a grantee under a voluntary defective conveyance to obtain the aid of a court of equity to correct and reform the conveyance as against an heir at law who is unprovided for by deceased. If the deed had been made to a purchaser for a valuable consideration, it would in equity be sustained against the heirs, and reformed so as to make it convey the land intended to be conveyed. But the legal title to the land sought to be, by a decree of court of equity, read into and made a part of the deed, is now cast in appellant and respondent equally, as heirs at law of deceased. It is a universal principle of courts of equity that, in all cases where relief is asked by aiding and correctrecting mistakes in the execution of instruments and powers, the party seeking such relief must stand upon some equity superior to that of the party against whom he asks If the equities are equal, the law must prevail, and the court will remain silent and passive. The equities of respondent are at least equal to those of appellant. It is the dictate of equity and natural justice that the property of a wife dying without issue should go in part to her surviving husband. This was certainly the view of the legislature in enacting our statute of distributions, for in such case it makes the husband the owner of one-half the property. If this be so, then equity would say to appellant that she should allow the respondent his one-half the property. A court of equity interferes to correct a mistake in a written instrument only in furtherance of justice, and to prevent fraud or some injustice. In this case, by refusing to correct the deed, no fraud or injustice is it. done to appellant. She has lost nothing, necause she paid no consideration for the deed. She has been deprived of nothing the law would otherwise give her. It is true, the intention of the grantor is not carried out; but it would have been equally true if an attempt had been made to make a will, and it had been defective in a vital part. The court could not reform a will, nor make it so that it would comply with the law. In this case the deceased intended to convey the property, but she did not do so. That intention will not now be carried out in favor of one who paid nothing for the conveyance, and against a lawful heir. The above principles are supported by an unbroken line of authorities. It was long ago said, in Dawson v. Dawson, 16 N. C. 101, 18 Am. Dec. 573: "The old beaten ground, long since occupied by the courts of equity, not to aid voluntary conveyances, seems to render any reasons that might be urged to show that the bill should be dismissed both trite and unnecessary." It is said in 1 Story, Eq. Jur. § 177: "For the same reason, equity will not supply a surrender or aid the defective execution of a power, to the disinheritance of the heir. at law." The following cases directly support what has been said: Henderson v. Dickey, 35 Mo. 120; Hout v Hout, 20 Ohio St. 119; Powell v. Powell, 27 Ga. 38, 73 Am. Dec. 724; Powell v. Morisey, 98 N. C. 426, 4 S. E. 185, 2 Am. St. Rep. 343; Shears v. Westover, 110 Mich. 505, 68 N. W. 266; Else v. Kennedy, 67 Iowa. 376, 25 N. W. 290; Gwyer v. Spaulding, 33 Neb. 573, 50 N. W. 681; Mulock v. Mulock, 31 N. J. Eq. 602. Counsel for appellant, in their reply brief, do not attempt to meet the many cases cited by respondent, but rely upon section 3399 of the Civil Code, and say: "We care not what the construction or decision of Eastern courts may be upon this subject, because our Code has clearly laid down the rule; and until that rule is changed by the legislature it remains the rule in this state, and fully and completely governs and controls the law of the case at bar." The section referred to provides that in case where, by reason of a mutual mistake, "a written contract does not truly express the intention of the parties, it may be revised on the application of the party aggrieved." If we concede that the word "may" means "must," it does not follow that an instrument must be revised, except upon the application of the party aggrieved, and in accordance with the rules of equity. The party aggrieved, in the sense of the statute, means one whose pecuniary interest is affected by the mistake. It would include one who paid value for land which by mistake was omitted from the decd. does not include appellant, who is not aggrieved, except in the sense that she may grieve that she did not get the property. In that sense the respondent might be said to be aggrieved because the property was not It conveyed to him. But the section was never intended to overthrow well-settled principles upon which equity has been administered under the common law. The section certainly does not contain all the law with respect to the correction of mistakes in courts of equity. It is only where it clearly appears that a long-established principle is intended to be overthrown that the court will give such effect to a statute. In re Mills' Estate (Cal.; Sept. 15, 1902) 70 Pac. 91. It follows that the judgment should be affirmed. We concur: HAYNES, C.; GRAY, C. PER CURIAM. For the reasons given in the foregoing opinion, the judgment is affirmed. (138 Cal. 73) WISHON V. SUPERIOR COURT OF TULARE COUNTY et al. (S. F. 3,190.) (Supreme Court of California. Dec. 16, 1902.) CONTEMPT-DECREE-TERMS. 1. Where a decree was that complainant was entitled to operate a certain irrigation ditch along the "south line" of certain land, and defendant, who owned the land, filled up a portion of the ditch north of the line established by the decree, it was error for the court, in contempt proceedings against her, to admit evidence for the purpose of showing that the description of the ditch in the judgment was not accurate, and find her guilty of contempt. In banc. Petition by Mary E. Wishon against the superior court of Tulare county and the acting judge thereof for a writ of review to annul an order adjudging her guilty of contempt. Writ issued. Maurice E. Power, for petitioner. Chas. G. Lamberson, for respondents. HARRISON, J. Application for a writ of review. The affidavit of the petitioner sets forth that the superior court of Tulare county rendered its judgment May 18, 1900, in an action then pending in that court, wherein J. H. Stuffelbeem was plaintiff and Mary Adelsbach et al. (including the petitioner herein) were defendants, by which it adjudged and decreed that the said Stuffelbeem was the owner of the right of way for a ditch across the N. E. 14 of section 14 in a certain township in the county of Tulare, "with the north bank thereof on the south line of the north half of the northeast quarter of said section 14," and entitled to clean out and operate the said ditch for the purpose of conveying water through the same to his lands for irrigation and other useful purposes, and enjoining the defendants, and each of them, from in any manner preventing him from cleaning out, or opening up, or operating a ditch upon said right of way; that the petitioner herein was at that time, and is still, the owner of certain land "lying north of the south line of the north half of the northeast quarter of said section 14"; that after the rendition of said judgment John Bashore became the successor in interest of said Stuffelbeem in and to the said ditch and the right of way therefor described in said judgment, and that on or about March 10, 1902, said Bashore opened up said ditch (for the purpose of conveying water therein to land owned by him) "across the said south line of said north half of said northeast quarter of said section 14 for a distance of eighty-four feet over and across the lands of the petitioner herein"; that all of the said ditch for said distance of 84 feet "is entirely north of the south line of the north half of the northeast quarter of said section 14," and upon the lands of the petitioner; that thereafter the petitioner filled up the ditch lying upon her said lands, but has never interfered with said ditch at any point either upon or south of the south line of the N. 2 of the N. E. 4 of said section 14. Upon an affidavit setting forth the aforesaid interruption of the ditch by the petitioner, she was cited before the superior court to show cause why she should not be punished for contempt in violating its aforesaid judgment; and upon the hearing on said charge the court admitted certain parol evidence, over the objection of the petitioner, for the purpose, as recited in its order, "of showing that the description of said ditch in the said judgment is not absolutely accurate," from which it found as a fact that the said ditch in controversy in said action was located, and for many years prior thereto had been located, "substantially along the line upon which it was opened up by said Bashore on or about the said 10th day of March, 1902." Upon this showing the court held that the petitioner had violated the terms and provisions of said judgment, and was by reason thereof guilty of a contempt, and imposed upon her a fine. Thereupon the petitioner made the present application for a writ of review for the purpose of having the said order of the court annulled upon the ground that its action in the premises was without its jurisdiction. Upon the facts set forth in the application of the petitioner, the court had no jurisdiction to adjudge her guilty of contempt for the act of filling up the ditch upon her lands, or to punish her therefor. By the judgment in the original action the north bank of the ditch was determined to be "on the south line of the north half of the northeast quarter of section 14," and in the same judgment the petitioner was declared to be the owner of the lands lying north of said line. The absolute verity which the judgment imports includes the location of the ditch itself, as well as a determination of the rights of the parties in reference thereto. The court was without jurisdiction to hold the petitioner guilty of contempt by reason of her interference with the ditch upon her own lands at a point outside of its lines as defined in the judgment. She was entitled to stand upon the exact terms of the judgment, and the court was not at lib erty to receive parol evidence for the purpose of showing that the judgment might have located the ditch in a different position, or, as is recited in its order, "for the purpose of showing that the description of said ditch in the said judgment is not absolutely accurate." It is therefore ordered that a writ of review issue out of this court to the respondents, commanding them to certify fully to this court, within 20 days from the service thereof upon them, a transcript of the record and proceedings in the matter of the order adjudging the petitioner guilty of contempt, and that in the meantime they desist for further proceedings therein. 1. An uncle verbally agreed with his nephew, a boy of 14, and with the boy's mother and guardian, that if the boy would accompany him, the uncle, from Ireland, to the uncle's American home, and there assist him, and accept his care and instruction, he would treat him as a son, and will to him all his property. For 17 years the boy faithfully fulfilled his agreement, but the uncle died intestate, without any rights in innocent third parties intervening. Held, that the nephew was equitably entitled to the estate, subject only to administration. 2. Where an action is brought to secure in effect the specific performance of a contract by an intestate to will his estate to plaintiff, and the result of the action will affect only the residue of the estate after administration, the administrator is not a necessary party. 3. It does not constitute fraud for the attorneys of the administrator to act for the plaintiff in the action, since the administrator is not a proper party to the litigation. Van Dyke, J., dissenting. In banc. Appeal from superior court, Lassen county; F. A. Kelley, Judge. W. M. Boardman, M. Marsteller, Frank J. Sullivan, Albert M. Johnson, A. A. De Ligne, James T. Boyd, and Wm. H. O'Brien, for appellants. Goodwin & Goodwin (N. J. Barry, of counsel), for respondent. GAROUTTE, J. The basic facts upon which this litigation has been inaugurated are these: Matthew Healy, 54 years of age, engaged in the stock raising business, and of considerable means, lived in Lassen county, state of California, in the year 1881, and for a long time prior thereto. He had not a relative in the United States, and during that year he returned to his old home in Ireland, to visit his brother and two sisters there re siding. He had been absent from the land of his birth for 37 years, and for 25 years last past his relatives had thought him dead. Plaintiff, Ulty McCabe, was then a boy of 14 years of age, residing there with his mother, his father being dead, and she being Healy's sister. Upon his visit Healy fancied this boy, and after repeated importunities addressed to his brother, who was guardian of the boy, and also addressed to the boy and his mother, to the end that he might accompany him upon his return to California, he (Healy) finally agreed with plaintiff and plaintiff's mother and his guardian that, "if the two latter would surrender plaintiff to his care and control, and if plaintiff would accompany him to his home in California, and there accept his care, instruction, and direction, and industriously learn and care for his (Healy's) business, his property, and personal interests, and continue so to do as long as he, said Healy, lived, he would take good care of plaintiff, treat him in all respects as if he was his own son, and upon his death plaintiff should have all the property of every character and wheresoever situated which he (Haly) should own at the time of his death. and that he would will to plaintiff all of his estate." Plaintiff, his mother, and his guardian accepted this proposition made by Healy. and upon the strength of these promises plaintiff was given into the possession of Healy, brought by him from Ireland to Lassen county, Cal., and for 17 years these two people lived together, keeping faith to the full letter and spirit of the aforesaid understanding. During the later years of Healy's life, under the care and guidance of this plaintiff, his business interests prospered and increased: and for several years prior to Healy's death his whole property, consisting of ranches, cattle, and horses, was under the actual control and in the possession of plaintiff, by virtue of the understanding entered into in Ireland, and subsequently agreed to and ratified by both parties at the time the property was placed in the possession of plaintiff. Unfortunately for plaintiff. Healy died intestate, and this action is now brought for the purpose of securing a decree to the effect that, subject to administration, the title of Healy's estate should be declared vested in plaintiff. The principle of law invoked by this bill cannot be gainsaid, and it is well stated by Prof. Pomeroy in his work on Specific Performance (page 268) in this language: "Courts of equity will, under special circumstances, enforce a contract to make a will, or to make a certain testamentary disposition; and this may be done even when the agreement was parol, where, in reliance upon the contract, the promisee has changed his condition and relations so that a refusal to complete the agreement would be a fraud upon him. The relief is granted, not by ordering a will to be made, but by regarding the property in the hands of the heirs, dev isees, assignees, or representatives of the deceased promisor as impressed with a trust in favor of the plaintiff, and by compelling defendant, who must, of course, belong to some one of these classes of persons, to make such a disposition of the property as will carry out the intent of the agreement." In Owens v. McNally, 113 Cal. 444, 45 Pac. 710, 33 L. R. A. 369, the court, in speaking of the general principle here involved, declared it to be supported "by the overwhelming weight of authority." And Mr. Freeman, in his note to Johnson v. Hubbell, 66 Am. Dec. 784, in discussing this question, declares: "It is not only in harmony with sound principle that a person may make a valid agreement binding himself to dispose of his property in a particular way by last will and testament, but it is supported by an almost unbroken current of authorities, both English and American." The author then cites scores of cases in support of the principle enunciated. In Owens v. McNally, supra, an additional element was recognized as necessary before a chancellor would be justified in granting equitable relief in cases of this character, and that element was to the effect that the granting of the relief must not operate in the commission of gross injustice to innocent third parties. It therefore follows in this case that, if the deceased, Matthew Healy, for an adequate consideration, agreed to leave a will upon his death by its terms giving all of his estate to the plaintiff, and that he died without leaving such a will, and, if plaintiff cannot be placed in statu quo, and the failure of the deceased, Healy, to leave the will as agreed works a fraud upon plaintiff, and the granting of equitable relief to plaintiff would not work a gross injustice upon innocent third parties, then a court of equity will enforce Healy's agreement by declaring his heirs constructive trustees of the title cast upon them by reason of his dying intestate. The facts of this case, when tested by the law as the court finds it, demand the relief given by the chancellor's decree. Indeed, upon its facts, the case is impregnable. In an examination of many cases where relief has been decreed similar to that here sought, we find no case where the facts appeal more convincingly to the chancellor than they do in the case at bar. Appellants, in their brief, have cited no case where relief has been denied upon facts in any substantial degree similar to those here presented, and it is doubtful if there is such a case to be found in the law books. It is not plain to the understanding what additional element in the nature of further covenants between Healy upon the one part, and the boy, his guardian, and his mother upon the other part, could have been inserted into this contract which would have given it greater legal strength. It is not the purpose of this opinion to analyze in detail cases from sister jurisdictions where relief has been decreed upon facts in 70 P.-64 no way more commendable to the chancellor than those before us on this appeal. But the court will content itself with a citation of those cases, accompanied by short extracts taken from some of them. Burns v. Smith, 21 Mont. 251, 53 Pac. 742, 69 Am. St. Rep. 653; Kofka v. Rosicky, 41 Neb. 328, 59 N. W. 788, 25 L. R. A. 207, 43 Am. St. Rep. 685; Johnson v. Hubbell, 10 N. J. Eq. 332, 64 Am. Dec. 773; Svanburg v. Fosseen, 75 Minn. 359, 78 N. W. 4, 43 L. R. A. 427, 74 Am. St. Rep. 490; Van Duyne v. Vreeland, 12 N. J. Eq. 142; Wright v. Wright, 99 Mich. 170, 58 N. W. 54, 23 L. R. A. 196; Sutton v. Hayden, 62 Mo. 101; Sharkey v. McDermott, 91 Mo. 647, 4 S. W. 107, 60 Am. Rep. 270; Healey v. Simpson, 113 Mo. 340, 20 S. W. 881; Brinton v. Van Cott, 8 Utah, 33, 33 Pac. 218; Godine v. Kidd (Sup.) 19 N. Y. Supp. 335; Rivers v. Rivers' Ex'rs, 3 Desaus. Eq. 195, 4 Am. Dec. 609; Schutt v. Society, 41 N. J. Eq. 115, 3 Atl. 398. In Jaffee v. Jacobson, 48 Fed. 21, 1 C. C. A. 24, 14 L. R. A. 352, the judge, after denying relief upon insufficient facts, said: "In all the cases called to our attention in which relief was afforded it appears that the promisees had substantially discharged the obligations which they had severally assumed. In most, if not all, instances they had lived in the promisor's household as members of his family, and had rendered faithful and effectual services for a long period of years. It was not possible, therefore, to administer adequate relief otherwise than by decreeing specific performance." In Burns v. Smith, 21 Mont. 251, 53 Pac. 742, 69 Am. St. Rep. 653, the court said: "We come to this conclusion more readily as we are of the opinion that the parties to the alleged contract never contemplated that the services of plaintiff were to be or could be. compensated in money, and because the parties cannot now be placed in statu quo. Besides, there are no intervening rights of third parties or innocent holders of the estate involved. * We think such disposi * tion of the case is but the carrying out of the cherished intention and desire and contract of the deceased in relation to his estate. The deceased had the right to dispose of his property as he pleased; and his contract to dispose of it, when free from fraud, imposition, and surprise, and being reasonable and moral, will be carried out and enforced by a court of equity. This is equity. This is right. It is real justice to carry out and enforce such contracts according to the intention of the parties in such cases." This language to the letter meets the facts of the case at bar. In Brinton v. Van Cott, 8 Utah, 33, 33 Pac. 218, the facts in all substantials are similar to those of the present case, and the court there said: "On that day Lydia Davis proposed to plaintiff, who was then a girl of sixteen years, that, if she would come and live with and take care of her until the time of her death, she would leave all her property to plaintiff, and her * * * * * * property should belong to the plaintiff at the time of her death. * After considering the matter, the offer was accepted, and she went and lived with Lydia Davis on the terms of the agreement so made and accepted, became a part of her family, worked for her and lived with her, and did and performed everything that a daughter could do for said Lydia Davis while she lived. Lydia Davis was in health, and owned her property. She had an undoubted right to dispose of it during her life as she saw fit to do. She knew the disadvantage of living alone. She had no relatives living in this country, and no one to cherish, love, and care for her in her declining years. She knew the plaintiff, probably had become attached to her during the time the previous services were rendered by her. She sought her services and care as those best calculated to serve her purpose during the remainder of her life, and was to reward her by bestowing upon her all the property she had at her death. She had confidence in the honesty and integrity of the plaintiff. It seems that confidence was well bestowed. The plaintiff not only accepted the offer, but satisfactorily performed her part of the contract. ** It required this young girl to give up plans of future independence, home and family,—and probably devote all the earlier period of her life, devotion, affection, and services to this friendless old lady. It appears from the complaint that the deceased was well satisfied with the agreement she had made, and that it was carried out according to her wishes. The services rendered were of such a peculiar character that it would be exceedingly difficult, and probably impossible, to estimate their value to the deceased by any pecuniary standard. It is evident from the contract deceased did not intend to measure such services, care, and company of the plaintiff by any such pecuniary standard. The plaintiff having performed her part of the mutual agreement under the circumstances alleged in the complaint, and the deceased having derived the full benefits of such contract as was contemplated by the parties, we think a failure on the part of the defendant to perform its part would work a fraud upon the rights of the plaintiff, and that a specific performance should be decreed." There is much more in the facts of the case at bar to commend itself to the chancellor than can be found in the case just quoted. In Healey v. Simpson, 113 Mo. 340, 20 S. W. 881, the court said: "And when the mother sent her child to dwell in another's family in a distant state, she yielded much affection and love; and Brewster, by the same act, gained the companionship of one who added much, no doubt, to his enjoyment of life. * * * In the very nature of things, nine years in the life of a child so change conditions that it is out of the power of an earthly tribunal to restore the parties to their original situation and environ ment, and the courts therefore compel them to stand upon and abide by the record they have made." Appellants seek for consolation in the California case of Owens v. McNally, supra, but no consolation is found for them there. In that case the court denied relief because subsequent to the making of the contract McNally, the promisor, married, and his wife was living at the time of his death. In speaking of this marriage, the court said: "The only permissible conclusion is, therefore, that the parties contracted in contemplation of that event. Upon its happening the rights of innocent third parties intervened, and a decree of specific performance could not be awarded." To have granted the relief sought in that case would have visited a great in justice upon the wife, an innocent third party, and this chancery will not do, and it is plain upon a reading of the opinion that relief was denied in that case by reason of this marriage. This is apparent, for we find the following language of the court at the threshold of the discussion of this question: "But we pass to a much more serious question,-whether specific performance, if decreed in this case, would not be harsh and oppressive, and unjust to innocent third parties." And it is plain the decree was reversed for this reason, notwithstanding the following language may be found in a previous portion of the opinion: "Neither the length of time which plaintiff was to spend in living with and caring for the intestate is made certain, nor the kind or character of the services which she was to render. What position she was to occupy in his household is not made plain. Whether she was to remain there in the capacity of a daughter, housekeeper, or menial servant, is in doubt." In the case at bar none of the difficulties here suggested present themselves when the facts are examined, for in this case the length of time which plaintiff was to spend in living with, working, and caring for the intestate is certain. The kind and character of services which he was to render is definite and certain. The position which he was to occupy in the household is made plain, he was to be treated as the son of Healy. The administrator of the estate of Healy, deceased, was not made a party defendant by the bill, and it is now asserted that the demurrer should have been sustained upon the ground of nonjoinder of parties defendant. Necessarily, this contention goes to the length of asserting that a decree rendered without the presence of the administrator as a party defendant is absolutely void. Section 379 of the Code of Civil Procedure provides: "Any person may be made a defendant who has or claims an interest in the controversy adverse to the plaintiff, or who is a necessary party to a complete determination or settlement of the question involved therein." Necessary parties defendant to an action in equity are those without whom no valid de |