85 P. 136 | Cal. Ct. App. | 1906
The last will and testament of Fannie Simpson appointed the defendants herein as its executors, and contained among other provisions the following: *301
"Fourth. I desire to be buried beside my husband in the cemetery of San Lorenzo; and I give, devise and bequeath to my executors hereinafter named the sum of two thousand dollars, in trust, however, that they shall invest the same in such way as their good judgment shall dictate so as to produce an annual income, which income shall be applied perpetually to keep in repair, embellish and make attractive our burial lot in said cemetery."
"Tenth. All the remainder of my estate I give and bequeath to my sister the said Catherine Smith."
The testatrix died December 26, 1891, and on January 11, 1892, her will was admitted to probate by the superior court of Alameda county, and on the same day letters testamentary thereon were issued to the defendants. Thereafter such proceedings were had that on January 16, 1893, the superior court settled the final account of the executors, and made its decree of distribution of said estate, in and by which it distributed to the defendants herein the sum of $2,000 in trust (setting forth the provisions of the trust as stated in the will), and distributed to the plaintiff herein all the remainder of the estate of said decedent, which was described in said decree as "all the rest of said estate, whether herein described or not." The $2,000 thus distributed to the defendants was received by them February 20, 1893, and, with the exception of so much thereof as has been expended in the care of said burial plot, they still have the same in their possession, together with its accumulations. March 2, 1904, the plaintiff brought the present action against the defendants, alleging that under the constitution of the state no perpetuity is allowed except for eleemosynary purposes, and that by the above clause in her will the testatrix attempted to create a perpetuity which is not for eleemosynary purposes; that the judgment of the court distributing the legacy to be held by the defendants for the purposes of said trust is void, and that as the residuary legatee of the decedent she is entitled to the same, together with its accumulations, and praying that the defendants be declared to hold the same for her benefit, and that they render an account thereof, and be directed to pay the same to her. A demurrer to this complaint on the part of *302 the defendants was sustained, and from the judgment entered thereon the plaintiff has appealed.
In the cases of William Hill Co. v. Lawler,
The plaintiff seeks herein, by a suit in equity, to make a collateral attack upon the validity of a judgment of a court that had jurisdiction of the subject matter, and of all the parties interested therein and which, by reason of lapse of time since its rendition and entry, has become final. The same principles attach to a judgment of a superior court in a matter of probate, as to its judgment in actions at law or suits in equity (Burris v. Kennedy,
The plaintiff herein was a party interested in the distribution of the estate of the decedent, and was properly brought before the court at the hearing upon the application therefor. Whether she then made the objection to the validity of the provision in the will which she now makes does not appear; but, whether she made it or not, she had the opportunity to do so, and, whether she did or neglected to do so, she is equally bound by the decree. (William Hill Co. v.Lawler,
The conclusiveness of the judgment is not affected by the fact that it involved the construction of a provision of the constitution instead of a statute. A statute passed by the legislature within its constitutional power is as authoritative and of as high a sanction as is a provision of the constitution. Each is an expression of the sovereign will of the people — the one by its direct vote; the other by its duly constituted representatives — and the failure of a court to give a proper construction to either is but an error of law. Neither is the conclusiveness of the judgment impaired by the fact that the defendants hold the legacy distributed to them merely in trust, and have no personal interest therein. The exigencies of this appeal do not require us to determine whether this trust is valid or not; but, conceding the claim of the plaintiff to be correct, the jurisdiction of the court to determine that question was not affected thereby, and not having been reversed remains binding upon all parties to the proceeding. An erroneous judgment that is unreversed is binding upon the parties thereto as an adjudication of their rights, and, when invoked before any other tribunal, is conclusive thereof. (Thompson v. McKay,
The judgment is affirmed.
Cooper, J., and Hall, J., concurred.