GIBSON, C. J., Dissenting. — I dissent. The majority opinion in the present ease concludes that this court should not issue its writ of prohibition to halt the proceedings in the court below, despite the fact that the court has exceeded its jurisdiction by proceeding in the absence of an indispensable party and although further action remains to be taken by the trial court.
Stated in simplest terms, the facts are that Edith W. Grose and F. Guthrie Wilson, as the surviving issue of Juliet Guthrie Wilson, were entitled upon her death to share equally in the income from certain trust property. When F. Guthrie Wilson died in 1940, Edith W. Grose would have been entitled to the entire current income under the terms of the original trust instrument. The plaintiff, Sallyneil B. Wilson, who is the surviving wife of F. Guthrie Wilson, claims that she is entitled to receive her husband’s share of the income under the terms of an amendment to the trust instrument executed in 1933. A further amendment of the trust instrument in 1935 purported, under certain conditions stated therein, to grant the plaintiff two-thirds of the share to which F. Guthrie Wilson was entitled during his lifetime. The defendant trustee refused to recognize the 1933 amendment after the death of F. Guthrie Wilson, and plaintiff brought this action to enforce the trust according to the terms of that amendment.
At the commencement of the trial the trustee objected to the jurisdiction of the court to proceed in the absence of Edith W. Grose and the other beneficiaries of the trust upon the ground that they were indispensable parties to the action. The trial court overruled this objection and proceeded to the trial with the trustee as the sole defendant. In the absence of Edith W. Grose, who would have been entitled to the entire present income under the original trust instrument, the court determined that the amendment of 1933 was valid and that the amendment of 1935 was null and void. It [417]determined that the plaintiff, Sallyneil B. Wilson, should “have and receive all the income therefrom and arising thereunder as long as she may live and to which said F. Guthrie Wilson would have been entitled had he survived.” The court ordered that the defendant trustee make an accounting and that Edith W. Grose “be, and she is hereby made a party to this action for the purpose of the accounting to be had herein . . .” It was ordered that a copy of the judgment establishing plaintiff’s right to one-half of the trust income be served upon Edith W. Grose, that she be served with a copy of the trustee’s account, that she file her objections to such account, and that she as well as the plaintiff be granted a personal judgment against the trustee for the amount found to be due as a result of the accounting.
The law is settled in this state that, where one of several beneficiaries seeks to fix his share in a trust fund and where judgment in his favor would inevitably determine the amount available for others similarly situated, such other beneficiaries are indispensable parties. A judgment rendered in their absence and purporting to determine their rights is in excess of the court’s jurisdiction. (Bank of California v. Superior Court, 16 Cal. (2d) 516, 521 [106 Pac. (2d) 879]; O’Connor v. Irvine, 74 Cal. 435 [16 Pac. 236].) When such parties are indispensable to a complete determination of the controversy, the court must order that they be brought in. (Code Civ. Proc., § 389; Mitau v. Roddan, 149 Cal. 1, 7 [84 Pac. 145, 6 L. R. A. (N.S.) 275].) In the present case a determination that the plaintiff is entitled to any portion of the present income inevitably reduces the income to which Edith W. Grose is entitled and under the cases above cited she is an indispensable party to the action. This is not true, however, as to the other beneficiaries who have no interest in the income in which plaintiff seeks to establish her share. The majority opinion apparently concedes that Edith W. Grose is an indispensable party. The opinion does not hold that the action already taken by the trial court is valid in so far as it has attempted to determine the rights of Edith W. Grose in her absence. Instead, the denial of the writ of prohibition is sought to be justified upon the ground that the court belatedly ordered that Edith W. Grose be made a party for the purpose of the accounting. This does not warrant a [418]denial of prohibition under the facts here presented. The rights of an indispensable party cannot be protected by an order which, as indicated above, made her a party “for the purpose of the accounting. ’ ’ That order was made as a part of the interlocutory judgment which purported to establish the relative interests of plaintiff and Edith W. Grose in the trust income arid which ordered that final jridgment be entered for each of them in the amount determined to be due after the accounting. Nor is it an answer to say that any error can be corrected upon an appeal from the final judgment. The fact that an indispensable party was not present when her rights were adjudicated constitutes a fatal defect in the action below which is clearly disclosed in the present prohibition proceeding. That being so, there is no sound reason for permitting the trial court to continue to a final judgment which must inevitably be reversed upon the appeal.
Since the respondent court has proceeded in excess of its jurisdiction by purporting to determine the plaintiff’s right to one-half of the trust income in the absence of Edith W. Grose and since the court has ordered that an accounting be held and final judgment be entered for plaintiff in accordance therewith, a writ of prohibition should issue both to restrain further acts of the trial court and to correct the past acts of the court in excess of its jurisdiction. It is true that ordinarily the writ of prohibition is a preventive, rather than a corrective, remedy. But, from the early case of Havemeyer v. Superior Court, 84 Cal. 327, 390 [24 Pac. 121, 18 Am. St. Rep. 192, 10 L. R. A. 627], down to the comparatively recent case of Evans v. Superior Court, 14 Cal. (2d) 563, 580 [96 Pac. (2d) 107], it has been consistently recognized that “the operation of the writ of prohibition is excluded only in cases where the action of the inferior tribunal is completed, and nothing remains to be done in pursuance of its void order. If its action is not completed and ended, its further proceedings may he stayed, and if it is necessary for the purpose of affording complete and adequate relief, what has heen done will he undone.” (Italics added.) (Havemeyer v. Superior Court, supra; see, also, Pierce v. Superior Court, 1 Cal. (2d) 759, 782 [37 Pac. (2d) 453, 460, 96 A. L. R. 1020]; 21 Cal. Jur. 581.) Here the action of the trial court “in pursuance of its void order” is not “completed and ended,” for it has ordered an accounting upon the basis of [419]which a final judgment is to be entered in favor of the plaintiff for the specific amount found to be due in accordance with the terms of the interlocutory judgment. The writ of prohibition is available and should be used to restrain the contemplated action of the trial court in pursuance of its invalid decree. In order to furnish complete and adequate relief, the writ should direct that the trial court correct its invalid proceedings by permitting Edith W. Grose to participate fully as a party in any action the purpose of which is to determine that plaintiff is entitled to a share in the present trust income.
The majority opinion, it should be noted, does not give validity to the acts of the court below which were in excess of its jurisdiction. Under the law of this jurisdiction, as established by the decisions of this court, the attempt to adjudicate the rights of an absent, indispensable party was futile. Those rights are unaffected by the void decree and the absent party whose interests were thus infringed may attack the decree directly or collaterally. (Bank of California v. Superior Court, supra, and cases cited therein.) The majority opinion by refusing to issue the writ merely postpones an actual determination of the rights involved in the present case.
The writ should issue.
Edmonds, J., and Traynor, J., concurred.
Petitioner’s application for a rehearing was denied March 2, 1942. Gibson, C. J., Edmonds, J., and Traynor, J., voted for a rehearing.