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).

         JUDGES: Belcher, C. Searls, C., and Haynes, C., concurred. McFarland, J., Temple, J., Henshaw, J.

         OPINION

          BELCHER, Judge

         This is an action to enforce an alleged trust.

         The averments of [41 P. 815] 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 one-fourth 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.          Immediately on the discovery of the frauds above detailed as to the forging of said will and the deception practiced upon her in inducing her to believe that three thousand dollars was her full share of the estate of her brother, and within a year before the commencement of this action, said Maria Kirshner demanded of defendants that they account for and turn over to her the one-fourth part of said estate so as aforesaid taken and held by them; but so to do defendants refused and they still refuse.

         Said James H. Blackburn, when he died, left no will, or purported will, other than the one above mentioned.

         The prayer is that defendants be adjudged to hold one-fourth part of the property of the estate so received by them in trust for the estate of Maria Kirshner, and for an accounting.

         A general and special demurrer [41 P. 816] to the complaint was interposed and sustained, and the appeal is from the judgment thereupon entered.

         The case, in all of its main features, is in no way distinguishable from that of the Broderick will case, decided by the supreme court of the United States and reported in 21 Wall. 503. In that case the relief sought was that the will be declared a forgery, and the probate and all subsequent proceedings be annulled and set aside, or that the defendants be charged as trustees, etc.

         It was held that a court of equity has no jurisdiction to avoid a will or to 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 also that a court of 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 be defrauded by the forged or fraudulent will, where the court of probate could afford relief by refusing probate of the will in whole or in part.

         The opinion was delivered by Mr. Justice Bradley, and, in speaking of the exclusive jurisdiction of the probate court of California in probate cases, and the questions which can be tried in probate proceedings, he, on page 516, said:

         " Incompetency, restraint, undue influence, fraudulent representations, and any other cause affecting the validity of the will, are specially mentioned as questions upon which issues might thus be framed. Various provisions were added calculated to secure a thorough investigation on the merits.. .. .

         " In view of these provisions it is difficult to conceive of a more complete and effective probate jurisdiction, or one better calculated to attain the ends of justice and truth.

         " The question recurs, Do the facts stated in the present bill lay sufficient ground for equitable interference with the probate of Broderick's will, or for establishing a trust against the purchasers of his estate in favor of the complainants? It needs no argument to show, as it is perfectly apparent, that every objection to the will or the probate thereof could have been raised, if it was not raised, during the proceedings instituted for proving the will, or at any time within a year after probate was granted; and that the relief sought by declaring the purchasers trustees for the benefit of the complainants would have been fully compassed by denying probate of the will. On the establishment or nonestablishment of the will depended the entire rights of the parties; and that was a question entirely and exclusively within the jurisdiction of the probate court. In such a case a court of equity will not interfere, for it has no jurisdiction to do so. The probate court was fully competent to afford adequate relief."

         And in State v. McGlynn , 20 Cal. 234, 81 Am. Dec. 118, in which it was sought to have the probate of the Broderick will vacated and set aside on the ground that the alleged will was a forged paper, and to have the property of the estate adjudged to have escheated to the state of California, Norton, J., delivered the opinion of the court, and, after a review of the authorities, on page 274, said:          " The court of chancery has no capacity, as the authorities have settled, to judge or decide whether a will is or is not a forgery; and hence there would be an incongruity in its assuming to set aside a probate decree establishing a will, on the ground that the decree was procured by fraud, when it can only arrive at the fact of such fraud by first deciding that the will was a forgery. There seems, therefore, to be a substantial reason, so long as a court of chancery is not allowed to judge of the validity of a will, except as shown by the probate, for the exception of probate decrees from the jurisdiction which courts of chancery exercise in setting aside other judgments obtained by fraud. But whether the exception be founded in good reason or otherwise, it has become too firmly established to be disregarded. At the present day it would not be a greater assumption to deny the general rule that courts of chancery may set aside judgments procured by fraud, than to deny the exception to that rule in the case of probate decrees. We must acquiesce in the principle established by the authorities, if we are unable to approve of the reason. Judge Story was a staunch advocate for the most enlarged jurisdiction of courts of chancery, and was reluctant to allow the exception in cases of wills, but was compelled to yield to the weight of authority." (Citing 1 Story's Equity Jurisprudence, sec. 440; And see, also, McDaniel v. Pattison , 98 Cal. 86, and Fealey v. Fealey , 104 Cal. 354.)

         The cases in which a court of equity is authorized to interfere and set aside a former judgment on the ground of fraud are those only where the fraud was extrinsic or collateral to the matter tried. (United States v. Throckmorton , 98 U.S. 61; In re Griffith , 84 Cal. 107; Pico v. Cohn , 91 Cal. 129; 25 Am. St. Rep. 159.)

         In the case last cited it is said: "That a former judgment or decree may be set aside and annulled for some frauds there can be no question; but it must be a fraud extrinsic or collateral to the questions examined and determined in the action. And we think it is settled beyond controversy that a decree will not be vacated merely because it was obtained by forged documents or perjured testimony. 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 be shown that the jurisdiction of the court has been imposed upon, or that the prevailing party, [41 P. 817] by some extrinsic or collateral fraud, has prevented a fair submission of the controversy. What, then, is an extrinsic or collateral fraud, within the meaning of this rule? Among the instances given in the books are these: Keeping the unsuccessful party away from the court by a false promise of a compromise, or purposely keeping him in ignorance of the suit; or where an attorney fraudulently pretends to represent a party, and connives at his defeat, or, being regularly employed, corruptly sells out his client's interest."

         Conceding then, without deciding, that the rule as to extrinsic or collateral frauds applies to judgments or decrees of probate courts, the question is, Are the allegations here sufficient to bring this case within the rule?

         It is claimed for appellant that the voluntary action of defendants in sending to Mrs. Kirshner "her son to assure her that three thousand dollars was coming to her, that this was all which she was entitled to, and defendants' payment of that money to her as her entire interest, in view of existing conditions, was an outside fraud collateral to and extrinsic of the procedure that culminated in the decree."

         Mrs. Kirshner must have known of the death of her brother and that she was one of his heirs, and presumably must have known that he left a large estate.

         The law required that when a petition for the probate of a will is filed, and the will produced, the time for the hearing must be fixed, and notice of the hearing published in a newspaper for a certain length of time ( Code Civ. Proc., sec. 1303), and that copies of the notice of the time appointed for the probate of the will must be sent by mail to the heirs of the testator residing in this state. ( Code Civ. Proc., sec. 1304.)

         It must be presumed, therefore, there being no allegation to the contrary, that a proper notice of the application to probate the will in controversy was published and sent out as required by law, and that Mrs. Kirshner received the notice sent to her. 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.

         But counsel say: "She might have attended court -- been present all the time -- and seen nothing to cause suspicion." If that be so, it furnishes no excuse for her remaining quiet and making no inquiry as to any of the transactions for nearly four years.

         It will be observed that it is not alleged in the complaint that young Findley said anything to his mother about the will or its terms, or the probate thereof, or that he advised or even 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 the estate. He simply told her that her interest in the estate was only three thousand dollars, and, the money being afterward paid, she quietly rested on that assurance until after the time to institute a contest had elapsed. ( Code Civ. Proc., sec. 1327.)

         This did not, in our opinion, constitute such an extrinsic or collateral fraud as will enable the representative of her estate to now claim the relief asked for.

         The demurrer was properly sustained, and the judgment should be affirmed.

         For the reasons given in the foregoing opinion the judgment is affirmed.