Campbell-Kawannanakoa v. Campbell

This is an appeal by plaintiffs from a judgment rendered against them on the sustaining of demurrers to their amended complaint.

In addition to the ground of want of facts, various other grounds were specified in the demurrers, such as want of jurisdiction, improper joinder of causes of action, defect of parties, ambiguity, uncertainty and unintelligibility. Defendants, however, do not discuss in their briefs any of these grounds, but confine themselves to the general ground of want of facts. We see no force in any of the other objections made by demurrer, and will not discuss them.

By the bill of exceptions settled for use on this appeal, it appears that plaintiffs, at the time of the sustaining of the demurrers, asked leave to amend their amended complaint by adding thereto certain allegations, a copy of which proposed amendment was served upon defendants and submitted to the court, and that the application was denied by the court solely upon the ground that if said proposed amendments were considered as incorporated in the amended complaint, said amended complaint would not state a cause of action. Under the circumstances we have no doubt that the proposed amendments should be taken into consideration in determining whether a cause of action was stated by plaintiffs in the lower ■court. If, with the aid of such amendments, a cause of action would have been stated in the complaint, and the amendments were essential to a statement of a cause of action, it must be held, inasmuch as the court based its refusal solely on the ground stated, that the court erred in refusing leave to amend. There is nothing in the contention that the bill of exceptions cannot be used on this appeal because the appeal was not taken within sixty days after the rendition of the judgment. The statute relied on in this regard (Code Civ. Proe., sec. 939, subd. 1) refers only to exceptions to a decision on an issue of fact on the ground that it is not supported by the evidence given on the trial.

The case stated by the amended complaint was as follows: The plaintiffs are three children of James Campbell, deceased, and defendant Abigail Campbell-Parker, his surviving wife, two of them being minors. Defendant Alice K. Campbell is the only other child of said parties, and said surviving wife and four children are the sole heirs at law of the deceased. Said James Campbell died at Honolulu, in the Territory of Hawaii, on April 21, 1900, being a resident of that place at the time of his death. He then owned the whole of the said St. James Hotel property as his separate property. He left a will by which he devised one third of his personal property to his widow, and assumed to devise all the rest of his property to his wife-and defendants Carter and Brown, as trustees. The trust attempted to be created by the will was contrary to the laws of this state prohibiting the suspension of the power of alienation for a longer period than during the continuance of lives in being at the time of the death of the testator, and was therefore void in its creation as to real property situated within this State. (Civil Code, secs. 715, 716; In re Walkerly, 108 Cal. 627 , [ 49 Am. St. Rep. 64 , 41 Pac. 771 ].) It was also void as to such real property, under our decisions, because it devised the title in fee simple to the trustees to be conveyed by them to the beneficiaries. (Estate of Fair, 132 Cal. 523 , [ 84 Am. St. Rep. 70 , 64 Pac. 100 ]; Estate of Stanford, 136 Cal. 97 , [ 68 Pac. 494 ]; Estate of Pichoir, 139 Cal. 682 , [ 73 Pac. 606 ].) According to the terms of this attempted trust, the property was to be held by the trustees during the lives of the wife and children in esse at the date of his death, and the survivor of them, and if at the death of such survivor there should be in esse any lawful issue of any child, the trust was to continue for the further definite period of thirty

Complaint is made that some of the allegations of the amended complaint are based on information and belief. These allegations are, however, as to matters which are peculiarly within the knowledge of defendants, and as to which the plaintiffs could learn only from statements made to them by others. There can be no question that such allegations may properly be based on information and belief. (See McDermont v. Anaheim etc. Co., 124 Cal. 115 , [ 56 Pac. 779 ].) Therefore, they must here be taken equally with the positive allegations as stating facts confessed by the defendants.

We are not advised of the particular reason upon which the learned judge of the trial court based his conclusion that the facts stated were not sufficient to establish a cause of action in plaintiff. It appears very clear to us that a complete case is thereby made for the interposition of the court of equity.

It is the universally accepted rule that the title and disposition of real estate is governed by the lex loci rei sites. This necessarily includes the proposition that the validity of a

In the face of these facts, it is idle to assert that no injury-resulted to plaintiffs, three of these children, from the acts of defendants. By those acts, the property to which they had succeeded under the laws of this state was irrevocably taken, from them without consideration under color of valid probate proceedings, and placed in the name and possession of the. trustees under the void trust. It is no answer to this to say that the deceased intended that they should not have this-property, and that the acts of the defendants simply result in accomplishing the intent of deceased as expressed in his will. We have already seen that as to this property, the expressed" intent of the deceased was ineffectual for any purpose and-the deceased died intestate. “A testator must do more than-merely evince an intention to disinherit before the heirs’ right, of succession can be cut off. He must make a valid disposition-of his property.” (Estate of Walkerly, 108 Cal. 652 , [ 49 Am. St. Rep. 97 , 41 Pac. 772 ].) It might as well be argued that if a person had indicated an intention as to a disposition of his-property to the exclusion of an heir at law by a writing not executed in accordance with the laws of this state and therefore absolutely void as a will, no injury would result to such heir from the concocting of a forged will expressing this intention, the probate thereof, and the distribution of the property of the deceased thereunder. Whatever other objection may reasonably be made to this action, certainly that of

That the acts of the defendants constituted a fraud upon plantiffs, as well as upon the court, appears to be too clear for question. All the proceedings in the superior court of Santa Clara County from the petition for the order of sale to and including the decree of distribution of the proceeds of the sale, were a mere sham, a scheme devised and carried into effect by defendants to remove the property from administration under color of proceedings for the sale thereof in the manner and for- the purposes authorized by our probate law, and to thus accomplish a practical distribution thereof to the trustees under the void trust. There was, in fact, no necessity for any sale of the property, no intention to sell, no sale, no proceeds of sale to be distributed or delivered to the trustees named as distributees in the purported decree. It was all a fraudulent imposition upon the jurisdiction of the superior court, an attempt by concealing the real facts of the transaction from the court to use that jurisdiction for the purpose of depriving plaintiffs without consideration of the property to which they had succeeded under our law—a mere cloak to cover what was in fact simply the bodily taking of plaintiffs’ property without consideration and without any authority of law.

Defendants’ counsel do not appear to seriously dispute that such acts would constitute a fraud, but they urge that inquiry in regard thereto is barred by the orders of the superior court authorizing the purported sale, confirming the purported sale, and distributing the purported proceeds. The jurisdiction of courts of equity to afford appropriate relief from judgments generally, and from such orders and decrees in probate proceedings as are here involved, when obtained by certain kinds of fraud, is too well established to be questioned. (See Bacon v. Bacon, 150 Cal. 477 , [ 89 Pac. 317 ] and cases there cited.) Where the judgment or order assailed is of such a character that a court of equity may not properly set it aside, it may nevertheless prevent an inequitable advantage being taken of it by adjudging the guilty beneficiary or his successor with notice a trustee for the defrauded party. This character of relief is very common in the matter or fraudulent probate proceedings. The order or decree from the effect of which relief

It is true, as urged by counsel for respondents, that a court of equity is not authorized to relieve a party from the effect of a judgment or order of a court having jurisdiction to render the judgment or make the order, on the ground that the same was obtained, by fraud, unless the fraud be, as was said in Pico v. Cohn, 91 Cal. 129 , [ 25 Am. St. Rep. 159 , 25 Pac. 970 , 27 Pac. 537 ], “extrinsic or collateral to the questions examined and determined” in the proceeding resulting in the judgment or order. That was a case where it was sought to annul a decree in another action between the same parties upon the ground that the prevailing party therein had obtained the decree by the introduction of evidence which he knew to be false and the giving of which he had accomplished by bribing the witness. It was held, in accordance with the views expressed in United States v. Throckmorton, 98 U. S. 65 , that a decree will not be vacated merely because it was obtained by forged documents or perjured testimony. It was said in that case: ‘1 The reason of this rule is, that there must be an end of litigation; and when parties have once submitted a matter, or have had the opportunity of submitting it, for investigation and determination, and when they have exhausted every means for reviewing such determination in the same proceeding, it must be regarded as final and conclusive, unless it can he shown that the jurisdiction of the court has heen imposed upon, or that the prevailing party, hy some extrinsic or

The fraud here alleged, however, was extrinsic or collateral, within the meaning of the rule. We are not confronted with a case where a party was in a former proceeding simply deprived by some fraudulent artifice or breach of fiduciary duty on the part of the prevailing party of his opportunity to be heard upon the issues there presented and determined, which is perhaps the most common instance of what is held to be extrinsic fraud. (See Bacon v. Bacon, 150 Cal. 477 , [ 89 Pac. 317 ]; Sohler v. Sohler, 135 Cal. 323 , [ 87 Am. St. Rep. 98 , 67 Pac. 282 ]; Aldrich v. Barton, 138 Cal. 220 , [ 94 Am. St. Rep. 43 , 71 Pac. 169 ].) The extrinsic character of the fraud is even clearer here than in such a case. The complaint is that the former proceedings were wholly sham, a mere fraudulent contrivance designed solely to give the appearance of legality and protection against attack to what was in fact nothing but the talcing of plaintiffs’ property without consideration and without any authority of law, and that they were carried through by means of false representation to and concealments from the court as to the real -facts and purposes of the transaction. Such an imposition upon the jurisdiction of the court, to the injury of the absent property-owners, from whom the nature of the transaction was concealed and who were wholly in ignorance thereof and could not have learned concerning the same from anything appearing on the face of the purported proceedings, by one who was their trustee for the proper administration of the affairs of the estate and the preservation of the property for legal distribution (Bergin v. Haight, 99 Cal. 52 , [ 33 Pac. 760 ] and who was, moreover, as the natural guardian of two of the owners, under obligation to protect their rights, (Sohler v. Sohler, 135 Cal. 323 , [ 87 Am. St. Rep. 98 , 67 Pac. 282 ], clearly constituted under the authorities what is known as extrinsic fraud warranting equitable relief. (See Bergin v. Haight, 99 Cal. 52 , [ 33 Pac. 760 ]; Tillman v. Thomas, 87 Ala. 524 , [ 13 Am. St. Rep. 42 , 6 South. 151 ]; Fisher v. Wood, 65 Tex. 199 ; McCampbell v. Burst, 73 Tex. 410 , [ 11 S. W. 380 ]; Lawson v. Acton, 57 N. J. Eq. 107 , [ 40 Atl. 584 ]; Hoffman v. Wheelock, 62 Wis., 436 , [ 22 N. W. 713 , 716]; Arrowsmith v. Gleason, 129 U. S. 86 , [ 9 Sup. Ct. 237 ]; Wickersham v. Comerford, 96 Cal. 433 , [ 31 Pac. 358 ];

There is no other point made in support of the ruling of the trial court that requires notice here. The allegations of plaintiffs were sufficient, in our judgment, to show a cause of action.

The judgment is reversed and the cause remanded for further proceedings not inconsistent with the views herein expressed.

Shaw, J., and Sloss, J., concurred

Hearing in Bank denied