Mulcahey v. Dow

GAROUTTE, J.

Arthur Waters died intestate in the city of San Francisco, leaving a wife, Elizabeth, here, and a sister and nephews in other states. Administration was had upon his estate, and in due time and after due notice, a decree of distribution was entered, which found that the wife, Elizabeth, was the only heir of her husband, and all of his estate was thereupon distributed to her. Subsequently, she died, and these defendants are her successors in interest. Plaintiffs—a sister of Arthur Waters, deceased, and a certain nephew and niece— brought this action, claiming to be his heirs at law, and asserting that the wife, Elizabeth, under the decree of distribution, held their respective shares of the property as an involuntary trustee. They were nonsuited, and judgment went against them. The sufficiency of the evidence to support the judgment will be the material matter considered upon this appeal.

As a legal foundation upon which to rest their claims, plaintiffs rely upon section

222é

of the Civil Code, which says: “One who gains a thing by fraud, accident, mistake, undue influence, . ... or other wrongful act, is .... an involuntary trustee of the thing gained, for the benefit of the person who would otherwise have had it.” For present purposes, it will be conceded that this section, in its terms, is broad enough to apply to judgments of courts adjudicating property rights; and here fraud upon the part of the wife, Elizabeth, in securing a judg

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ment, is relied upon to support a recovery. In cases of this character, in order to substantiate the charge of fraud, evidence must be produced which is fully satisfactory to the judicial mind. The rule is clearly stated in

Wickersham v. Comerford,

104 Cal. 495, where this court said: “It was necessary for the plaintiff to establish by clear and indubitable proof, to the satisfaction of the superior court, that the order setting apart the homestead had been obtained through some fraud practiced upon that court by the defendant.....She cannot be charged with fraud or any fraudulent imposition upon the court for merely failing to state in her petition any facts tending to show that the petition ought not to be granted, unless it is made to appear that she knew the import of these facts, and that they were willfully suppressed by her with the intention of deceiving the court and thereby inducing it to grant her petition.” Again, fraud must be shown which is extrinsic and collateral to the cause. It is held in