Siddall v. Harrison

emple, J. This action is brought against the exec-of the will of Elizabeth Traylor, deceased, and a many other persons who do not appear to have a,ny interest in the estate, or in the controversy, and no reason is shown in the complaint why they are or should be joined as defendants.

The plaintiffs are not mentioned in the will, and claim no interest under it, but they aver that either plaintiff Siddall is the sole heir, or that her co-plaintiff, White, is alone entitled to share the estate with her as heirs at law. By the terms of the will all the property of the-testatrix is disposed of, but the complaint avers that, various legacies are void, and among them the residuary bequest, and that the legal and valid legacies being paid, there will be a large sum undisposed of.

The plaintiffs aver that the executors claim that neither of the plaintiffs are heirs at law to said estate, and that all the legacies are legal and should be paid; and they ask that the legacies may be declared void, and that the plaintiffs, one or both, are heirs at law to said estate, and for general relief

[562]To this complaint a demurrer was interposed, which was sustained, and the plaintiff declining to amend, final judgment was entered and the plaintiff appeals.

Among the grounds of demurrer is the claim that the court has no jurisdiction of the action, and that the complaint does not state a cause of action.

In the recent case of Williams v. Williams, ante, p. 99, it is said that the jurisdiction of the Superior Court to construe a will was determined in the case of Rosenberg v. Frank, 58 Cal. 403.

The attention of the court does not seem to have been called to the fact that that case was brought in the District Court, and arose under the former .constitution, nor to the fact that a majority of the court did not concujr in the opinion on the subject of jurisdiction. Onljy Justices Thornton, Sharpstein, and the Chief Justine concurred in the opinion. Mr. Justice Ross concr^ed specially, saying that he gave his adhesion only„be®use the former court had held that the District Couffflhad such jurisdiction, and perhaps property rights hiad grown up under such decisions. The cases of Williams v. Williams, Rosenberg v. Frank, supra, as also the case of Payne v. Payne, 18 Cal. 292, were all in a sense consent cases. No one objected to the jurisdiction, and alt parties interested desired the decision. In view of thesp facts, and of the weighty reasons against the jurisdiction given in the dissenting opinion in the case of Rosenberg v. Frank, to which others might be added, I do not know whether the court will adhere to these conclusions, but I am convinced the jurisdiction ought not to be exercised, unless some good reason is given for thus interfering., with a matter pending in another court. The inconvenience may be very great.