
    [S. F. No. 2076.
    Department Two.
    July 10, 1900.]
    HUGO HUGER TOLAND et al., Respondents, v. MARY J. EARL et al., Appellants.
    'Estates :of Deceased Persons—Settlement and Distribution—Exclusive Probate Jurisdiction of Superior Court.—The superior court which has charge of the administration of the estate of a deceased person has exclusive jurisdiction as a court of probate over all questions relating to the settlement and distribution of the estate.
    Id.—Deraignment of Title to Estate—Decree of Distribution.— Under our probate system all deraignment of title to the property of deceased persons, whether dying testate or intestate, is-through the decree of distribution -entered as the final act in the administration of the estate.
    Id.—Conclusiveness of Decree.—The law of an estate distributed under a will is the decree of distribution and not the will, and the decree of distribution is conclusive upon the whole world.
    Id.—Instruction by Court of Equity.—The superior court, sitting as a court of equity, has no jurisdiction of an action brought pending The administration of an estate to instruct the court having probate jurisdiction thereof, as to what distribution of the estate should be made under, the will, after the administration has been completed.
    
      Id.—Action in Equity to Construe Will—Legal Questions—Trusts— Province of Superior Court Settling Estate.—An independent action in equity does not lie in this state to construe a will, whether it involves merely legal questions, or questions relating to the execution of trusts created by the will. It is the province of the superior court Which settles the estate of a deceased person to construe the will and the trusts created thereby; and it may exercise all equity powers necessary for a complete administration of the estate, though not authorized in the limited exercise of its probate jurisdiction to determine controversies not within the scope of such administration.
    Id.—Equitable Action in Same Court Having Probate Jurisdiction— Dismissal—Void Judgment.—An action in equity brought in the same court which has probate jurisdiction over the estate, to obtain from that court sitting in equity a construction of the will for the same court sitting in probate, cannot be entertained, and must be dismissed. Any judgment rendered therein would be void.
    Id.—Cases Distinguished—Change of Constitution.—Cases for the construction of wills and of trusts thereunder arising under the former constitution, which vested all equity jurisdiction in the district courts, and established separate probate courts, are inapplicable to the present judicial system established under the new constitution, which vests both equity and probate jurisdiction in the superior court. One judge of the superior court sitting in equity cannot control another sitting in probate.
    APPEAL from a judgment of the Superior Court of the City and County of San Francisco. William B. Daingerfield, Judge.
    The facts are stated in the opinion of the court.
    John B. Mhoon, and Edward C. Harrison, for Appellants.
    W. B. Treadwell, for Plaintiff, Respondent.
    Edward E. Treadwell, for E. B. Mastick et al., Respondents.
    William A. Beatty, and Shortridge, Beatty & Brittain, for William G. Toland, Respondent.
    Wilson & Wilson, for Grace Church, Respondent.
   TEMPLE, J.

This action was brought by the administrator with the will annexed of the estate of Mary B. Toland, deceased, for the purpose of having the probate court instructed as to what distribution shall he made of the estate under the will. There is a general averment in the complaint that differences exist between plaintiff and the defendants and among the defendants themselves, by reason of which plaintiff is nnable to properly administer said estate, and some of the doubts relate to controversies not within the jurisdiction of the court sitting as a court of probate. But nowhere in the complaint is it shown that the administrator has any doubt as to anything beds required to do, and when the doubts stated are fully considered it is manifest that there is no embarrassment whatever as to the proper mode of performing his trust in the administration of the estate. The parties simply differ as to what distribution shall be made of the residue of the estate after the administration has been completed. Plaintiff sues in his representative and also in his individual capacity. In his representative capacity he has no interest in the questions he seeks to raise. It is alleged that E. B. Mastick and George H. Mastick contend that certain rents are by the terms of the will given to them. This certain other defendants deny, and claim that such rents under the will belong to a fund for the payment of legacies. These are matters to be determined in the decree of distribution, and the doubts do not embarrass to any extent the administration. Ample funds are provided for the payment of the legacies, whatever conclusion may be reached upon that subject. There are no doubts as to whether it is necessary to provide, by sale or otherwise, a larger fund to pay legacies if these rents are given to E. B. and George H. Mastick.

Plaintiff contends as an individual that he is entitled under the will to an undivided one-half of the proceeds of a sale ordered in the will, while certain defendants contend that plaintiff is entitled only to one-half of what will remain in such fund after the debts, the expenses of administration,-and legacies have been paid out of it. To determine these questions is a function of the decree of distribution, and it is not at all important that they should be sooner determined.

The jurisdiction of a court of equity cannot be brought into action on the ground that a trustee is seeking instruction as to the proper mode of executing his trust (conceding that under our system such could ever be a ground of jurisdiction, which I do not), for the will creates no trust estate and the questions are purely legal. Pomeroy says that the present doctrine, where courts entertain suits to construe wills, is that the jurisdiction is simply an incident of the general jurisdiction of courts of equity over trusts; and “that a court of equity will never entertain a suit brought solely for the purpose of interpreting the provisions of a will without any further relief, and will never exercise a power to interpret a will which only deals with and disposes of purely legal estates and interests, and which makes no attempt to create any trust relations with respect to the property donated.” (3 Pomeroy’s Equity Jurisprudence, sec. 1156.)

This proceeding would not be tolerated even in those jurisdictions where it is still held that courts of equity may, under some circumstances, interfere to interpret trusts created by wills during administration.

But I think such a suit cannot be maintained under our system in any case, FTor do I think the question is as to whether the jurisdiction of courts of equity in this state is as extensive as was formerly the jurisdiction of the courts of equity in England. There is no controversy here as to jurisdiction between courts of law and courts of equity. Both jurisdictions are vested in the same courts, and such matters are only material in determining the character of the remedy to which the party may be entitled in a particular case.

The legislature has provided a special proceeding for the administration of the estates of deceased persons, whether testate or intestate. For the conduct of this special proceeding a minute code has been provided, through which every purpose for which resort was formerly had to courts of equity is attained. In England, only personalty was involved in the administration, but the relation of the personal representative to the creditors, legatees and distributees was such, and the relief afforded in ecclesiastical courts so inadequate, that this was the most important branch of chancery jurisdiction. (1 Pomeroy’s Equity Jurisprudence, sec. 77.)

In the probate proceeding provision is made for the presentation and allowance of the claims of creditors, and, when the assets of the estate have been fully ascertained, upon notice the claims of creditors are ordered paid, if the assets are insufficient to pay all, in a certain order. Certainly, this provision must he exclusive of the jurisdiction of a court of equity to marshal the assets and to direct the payment of claims.

If a legacy falls due, or a partial distribution of an intestate estate should be made, the probate court can order the personal representative to make the payment or distribution. This will also be done upon notice, and, the proceeding being in rem, when such notice is given the whole world is brought in. ■Surely, this must be exclusive of a suit in equity in which the parties are necessarily limited.

The same is true as to the settlement of the accounts of the administrator or executor. Elaborate provision is made to force the executor or administrator to account, and in this accounting the creditors and distributees are interested. In an insolvent estate it is a necessary preliminary to the marshaling of the assets for payment of creditors, and it is always a necessary preliminary to a final distribution. This settlement made after the prescribed notice is conclusive upon all interested parties.

But the most conclusive reason, to my mind, why this jurisdiction must he held to he exclusive is that, under our probate' system, all deraignment of title to the property of deceased persons is through the decree of distribution entered as the final act in the administration of an estate, whether testate or intestate. Ho one will contend that this decree can be made by any other court or in any other proceeding. It constitutes not only the law of the personalty, but also of the real estate. In other jurisdictions this decree is also held to be conclusive. But generally it concerns only personal property, and the power to make it does not involve the power to construe trusts in land created by the will. Here the probate court not only may, but' should, and often must, construe the trusts created by the will. After the decree is made the will practically drops out of existence. The law of the estate is the decree and not the will, and, as I have said, all deraignments of title are through it. (Goad v. Montgomery, 119 Cal. 552.)

The proceeding differs much from the systems of administration where the personal property goes to the personal representative and the land to the heir. Here the relation of the pro-hate court to the executor or administrator is much more analogous to the relation of a court to its receiver. And here, too, the entire probate proceeding from the grant of administration, or the probate of a will, is calculated to give notice to the heirs of a decedent, and special notice is required to be given of the time when distribution will be made, where all interested parties can be heard. The distribution is declared to 'be conclusive upon the whole world.

It is no small consideration, in my opinion, that this probate proceeding is in the same court in which a suit would be brought to construe the will. The special proceeding may as well be in the nature of a proceeding in equity as at law, and it is before the same chancellor to whom it would be necessary to appeal in a personal action to instruct the administrator or executor and the court as to the proper construction of the will. If it were found necessary or convenient to embody such construction in an order so that appeal could be taken to the supreme court, this could easily be provided for in the proceeding. "Why should Judge Coffey, sitting in probate, be instructed by Judge Coffey, sitting in a case in equity brought for that purpose?

If it is necessary or proper to appeal to a court of chancery, the probate court is such a court, and the proceeding is in fact for that purpose. It is the same court when sitting in matters of probate, and may exercise all equity powers necessary for a complete administration. (Estate of Burton, 93 Cal. 459.)

The cases relied upon to sustain this action, with the exception of Williams v. Williams, 73 Cal. 99, all arose under the former constitution. In the mentioned case Rosenberg v. Frank, 58 Cal. 387, was followed without noticing that it arose under a different judicial system.

The probate proceeding then was not in the court presided over by the same chancellor before whom the action to obtain a construction of the trusts would be brought. The supreme court had held that the probate court was an inferior court. While I do not wish to conceal my opinion that a wrong view was taken in those cases, the intention that the jurisdiction of the court sitting in probate should be exclusive was not so obvious under that judicial system, and it was quite natural that lawyers trained under a different procedure should for a time fail to appreciate the change, and the early cases show this.

Wilson v. Roach, 4 Cal. 362, was an action against a guardian to compel him to account. The court said that district courts were vested with the jurisdiction by the constitution, and the legislature could not deprive them of the jurisdiction. The reasoning has no application now. The legislature has not attempted to deprive any court of its jurisdiction. It has only provided a mode in which that jurisdiction shall be exercised.

Clarke v. Perry, 5 Cal. 59, was an action against an administrator to compel an accounting. He had accounted to the probate court, but it was contended that he had not fully accounted. The court held that one who was not an actual party to the accounting had in the probate court was not bound by it, and could proceed to enforce a full accounting in the district court. This was upon the ground that the probate court was of inferior and limited jurisdiction.

Deck v. Gerke, 12 Cal. 433, was a case to compel an accounting and a distribution. Judge Baldwin commenced his opinion with the statement that, apart from previous decisions, it would be doubtful if the probate court had not exclusive jurisdiction, but he says the probate courts are courts of special and limited jurisdiction, and under the decisions courts of chancery have assumed jurisdiction; the principle asserted is more convenient in practice, and it is too late to question the jurisdiction.

Payne v. Payne, 18 Cal. 292, was a controversy submitted without action as the statutes permitted, and no question of the right in that mode to interfere with probate proceedings was raised or discussed.

In Rosenberg v. Frank, supra, the point was the first time fully considered. That was also a consent case, and the remarks made upon the subject were evidently in reply to objections raised by a member of the court and set forth in a dissenting opinion. One argument urged in the dissenting opinion was that courts of chancery formerly took jurisdiction of cases of administration because the probate jurisdiction then existing was a “lame jurisdiction,” and that under our system it was not so. The reply is, in effect, that all existing equity jurisdiction was by the constitution vested in the district courts, and the fact that other courts were vested with some equity jurisdiction did not limit the jurisdiction of the district court in the absence of prohibitory language in the constitution, or unless it appeared affirmatively that the jurisdiction conferred upon the other court was intended to be exclusive. It was also held that while the legislature could give to the probate court such probate jurisdiction as it saw fit, it could not take away from the district courts “any of the equity jurisdiction conferred on them by the constitution”; and it was also said that “the probate court held its jurisdiction subject to the exercise of this jurisdiction by the district court.”

Rosenberg v. Frank, supra, arose under the former constitution, and much of this reasoning has no force whatever as applied to our present judicial system. There is no possible question now as to what courts have probate jurisdiction, nor whether courts of equity do or do not have jurisdiction over matters of administration. The superior court has full chancery jurisdiction, and also probate jurisdiction, and a special proceeding in rent, has been prescribed to it in which it is required to administer estates, whether testate or intestate. And, I repeat, there is no occasion in this case to determine whether while sitting in probate it is acting as a court of equity or not. It is clearly within its admitted jurisdiction, and further we need not go. We need not inquire under what branch of jurisdiction the particular proceeding comes, much less reasonable would it be to say that because formerly courts of chancery took cognizance of matters of administration on the ground that the jurisdiction of the ecclesiastical courts was a “lame jurisdiction,” one judge of this court, calling himself a chancellor sitting in a case in equity, can interfere to control another judge in the same court sitting in probate.

The proceeding is entirely statutory, and it is true that in some sense the court in this special proceeding is exercising a •special and limited jurisdiction. The mode and procedure limit its jurisdiction. It is not there authorized to decide controversies not strictly within the probate proceedings. Except in the case of creditors it has no jurisdiction to determine claims adverse to the estate itself. Such was Griggs v. Clark, 23 Cal. 427. The remark made by Judge Crocker, and quoted as authority here, might as well have been made in an action of ejectment. It was not denied that such an action could be brought in a court of equity, nor was it claimed that the probate court had any jurisdiction over the matter. Executors and administrators have frequent occasion to sue and are often sued in other courts. But I do not see what that has to do with the matter under discussion here. To determine such controversies is not within the scope of the proceeding in probate; nor, except as to creditors, does the court in that proceeding acquire jurisdiction over controversies or persons not claiming under the decedent. And it may be said that creditors do so. They are given by statute a right as'to the estate and to share in some sense in its distribution.

This matter was really determined in Goad v. Montgomery, supra. It was there said: “It would be an anomaly in jurisprudence that a court which is vested with full jurisdiction in matters of probate should be controlled in the exercise of that jurisdiction by the action of a co-ordinate court which has neither controlling nor revisory jurisdiction in such matters. The court was not required to follow that judgment, but could distribute the estate in accordance with its own views.” That being so, a judgment in this case one way or the other could not affect the proceeding in the probate court, and would afford no protection to the administrator, if he were required to base any action upon it. It would, in fact, be a void judgment.

The judgment is reversed and the cause remanded, and the superior court is directed to dismiss the action.

McFarland, J., and Henshaw, J., concurred.

Hearing in Bank denied. 
      
       63 Am. St. Rep. 145.
     
      
       63 Am. Dec. 82.
     
      
       73 Am. Dec. 555.
     