State v. McGlynn & Butler , 20 Cal. 233 ( 1862 )

Norton, J. delivered the opinion of the Court—Field, C. J. and Cope, J. concurring.

The complaint in this action sets forth that the Attorney General, in behalf of the People, has filed an information hi the same Court, asking for a decree, that the estate of the late David C. Broderick has escheated to the People of the State; that the Attorney General files this bill in equity, and seeks the aid of the equity powers of the Court in furtherance of the objects and purposes of said information ; that said Broderick died on the sixteenth day of September, 1859, intestate, leaving no heirs, representatives, or devisees, capable of inheriting any of Ms real or personal estate; that said Broderick left certam real and personal estate in the city and county of San Francisco, which has escheated to the State; that on the twentieth of February, 1860, the defendants presented a paper writing, purporting to be the last will and testament of said Broderick, to the Probate Court of the county of San Francisco for probate; that on the eighth day of October, 1860, a judgment or decree was entered by said Probate Court admitting such paper writing to probate as the last will and testament of said Broderick, and granting letters of administration with the will annexed to the defendants; that said paper writing, purporting to be the last will and testament of said Broderick, was a false and forged paper, and was fabricated, after the death of said Broderick, by certain persons with George Wilkes, whose name appears as the umversal devisee; that the defendant Butler caused false testimony to be used in procuring said decree of probate; that the defendants, as executors, have allowed certain debts against said estate, and have applied to the Probate Judge for leave to sell the real ¿estate to pay said debts, and a legacy to McGlynn, and that an order allowing such sale has been made, and the property advertised for sale, and that if such sale takes place to innocent purchasers, it will work irreparable injury to the plaintiffs, by causing a great number of parties to become interested, and by casting a cloud upon the plaintiffs’ title; that the defendants are in the actual possession of said real estate; that the knowledge of said fraud and forgery came to the Attorney General in shape to warrant legal proceedings in behalf of the State only after the eighth day of October, 1861, when it was too late to apply to the Probate Court to revoke the probate of said paper writing. After setting forth certain other matters, not material to" specify here, the complaint prays, among other things, that the decree admitting the said forged will to probate, and the order allowing the sale of said real estate, be set aside, and annulled, and declared of no effect; that the sale of the real estate be enjoined, and the defendants be restrained from further intermeddling with the estate; that this case be retained until said information be determined ; that said will be declared a forgery, and of no effect; and that said real estate be declared to have escheated to the people of the State, without incumbrance or liabilities.

The answer of Me Glynn, among other things, on information and belief, denies that said Broderick died intestate, and avers that said paper writing was the genuine last will and testament of said Broderick, and that the devisee, George Wilkes, therein mentioned, is and was at the death of said Broderick a citizen of the United States, resident of the State of Rew York, and in every way caparble of inheriting and receiving as such devisee any of the real and personal property of the said estate, and denies that the said Butler, or any other person, caused any false testimony to be used in procuring said decree of probate.

It is not necessary to consider what is the proper effect, on an application for an injunction, of a complaint filed on behalf of the People without verification, or the effect of an answer in such a case denying the material averments on information and belief, because the facts on which our decision depends are not disputed, but are averred in the complaint, and are admitted and insisted upon in the answer. It is not claimed in the complaint but that the devisee named in the will is capable of taking and holding the estate, if the will is valid.

The purpose of this action is to aid the proceeding by information instituted to determine the escheat of the estate of David C. Broderick. The aid sought is a judgment, which will have the effect to set aside and vacate the probate of what is claimed to be a forged will, by which Broderick devised and bequeathed his estate, real and personal, principally to George Wilkes, who is a devisee capable of taking and holding, and to set aside the will. To displace this probate and set aside the will is necessary to the success of the proceeding by information, since the existence of such a devisee prevents the estate from escheating. An escheat occurs only when a person shall die seized of any real or personal • estate, and leaving no heirs, representatives or devisees capable of inheriting or holding the same.

The fact that a will purporting to be the genuine will of Broderick, devising his estate to a devisee capable of inheriting and holding it, has been admitted to probate and established as a genuine will by the decree of a Probate Court having jurisdiction of the case, renders it necessary to decide whether that decree, and the will established by it, or either of them, can be set aside and vacated by the judgment of any other Court. If it shall be found I that the decree of the Probate Court, not reversed by the appellate Court, is final and conclusive, and not liable to be vacated or questioned by any other Court, either incidentally or by any direct jnoceeding, for the purpose of impeaching it, and that so long as the probate stands the will must be recognized and admitted in all Courts to be valid, then it will be immaterial and useless to inquire whether the will in question was in fact genuine or forged. /

The magnitude of the estate in litigation naturally awakens un- \ usual attention, and prompts the inquiry whether so serious a ques- I tion as the truth or falsity of this will can be forever settled by the \ simple decision of one Court, and that a Court which, for most pur- 1 poses, is not of the highest jurisdiction; and whether, if such be I the case, it is owing to any defect in judicial proceedings peculiar I to this State or .to this country. In view of the interest in this question excited by this case, it is not inappropriate to say that the laws of this State upon this subject are in no respect peculiar or singular; and the decision of this question by this Court must be in conformity with, and controlled by, the uniform decisions of the same question which have been made by the Courts of the other States and of England.

In England, the probate of wills of personal estate belongs to the Ecclesiastical Courts. Eo probate of a will relating to real estate is there necessary. The real estate, upon the death of the party seized, passes immediately to the devisee under the will, if there be one; or if there be no will, to the heir at law. The person who thus becomes entitled takes possession. If one person claims to be the owner under a will, and another denies the validity of the will and claims to be the owner as hem at law, an action of ejectment is brought against the party who may be in possession by the adverse claimant; and on the trial of such an action, the validity of the will is contested, and evidence may be given by the respective parties as to the capacity of the testator to make a will, or as to any fraud practiced upon him, or as to the actual execution of it, or as to any other circumstance affecting its character as a valid devise of the real estate in dispute. The decision upon the validity of the will in such action becomes res judicata, and is binding and conclusive upon the parties to that action and upon any person who may subsequently acquire the title from either of those parties; but the decision has no effect upon other parties, and does not settle what may be called the status or character of the will, leaving it subject to be enforced as a valid will, or defeated as invalid, whenever other parties may have a contest depending upon it. A probate of a will of personal property, on the contrary, is a judicial determination of the character of the will itself. It does not necessarily or ordinarily arise from any controversy between adverse claimants, but is necessary in order to authorize a disposition of the personal estate in pursuance of its provisions. In case of any controversy between adverse claimants of the personal estate, the probate is given in evidence and is binding upon the parties, who are not at liberty to introduce any other evidence as to the validity of the will.

In this condition of the law as to the mode of proving wills in England, a vast number of cases have arisen, in which applications have been made to the Court of Chancery to set aside wills upon the ground that they were obtained by fraud. These applications have been made upon the maxim that fraud is a peculiar object of chancery jurisdiction, and the detection and defeating of it one of the special objects for which Courts of Chancery were established. But in these cases the relief sought has been uniformly denied, for the reason that the Court of Chancery has no power to determine the validity of a will. However comprehensive the jurisdiction may be to set aside other fraudulent instruments, all control over wills has been disavowed by the Court of Chancery. The reason assigned as respects wills of personal property is, that „ the subject belongs exclusively to the Ecclesiastical Courts, which Courts are alone competent to decide upon their validity, as well where that depends upon a question of fraud as upon any other ground. (Archer v. Masse, 2 Vernon, 8; Allen v. Dundas, 3 D. & East. 131; Gingell v. Home, 9 Simon, 539.) As respects wills of real estate, the reason assigned in some cases is that there is a remedy at law; in others it is said, generally, that the Court of Chancery has no jurisdiction to determine the validity of a will. (Kerrick v. Bransby, 7 Brown’s Cas. in Pat. 437; Jones v. Jones, 7 Price Ex. R. 663; Jones v. Frost, Jacobs, 466; Pemberton v. Pemberton, 13 Ves. 290.) As the reason that the Ecclesiastical Courts have exclusive jurisdiction does not apply to wills of real estate, and as the reason that there is a remedy at law applies equally to other instruments over which Courts of Chancery exercise jurisdiction to set them aside for fraud, it has been said that, the reasons assigned by Courts of Chancery for declining to take jurisdiction in cases of wills of real estate alleged to be obtained by fraud are not satisfactory. But notwithstanding this objection to the sufficiency of the reasons assigned, the fact that the jurisdiction does not exist has been constantly asserted through a long line of decisions, and is as firmly established as any other principle in regard to chancery jurisdiction. (See cases above cited.)

Courts of Chancery, in their efforts to defeat fraudulent practices, Jhave in some cases deprived parties of the benefit of the fraudulent |will by decreeing that such parties shall hold the property under ¡'the will in trust for the parties who would have been entitled to it if such will had not been probated. In such cases, however, they have disclaimed any power to set aside the will or the probate, and the resort to this circuitous mode of defeating a fraud but the more clearly evinces how firmly the principle is fixed, that they have no power to act directly upon the subject. In one case, (Barnesly v. Powell, 1 Ves. Sen. 284) the Court decreed the party claiming under a probated will to go into the Probate Court and consent to the probate being set aside. It claimed to do this upon the ground that the probate was obtained by virtue of a deed of proxy fraudulently procured; and as the Court of Chancery had the power to set that .deed aside, it would leave the probate without any foundar tion. At the same time that this novel proceeding was adopted, the Court say it will be. done “ without interfering with any jurisdiction.” This is the only case, so far as we are aware, since the decision in the case of Kerrick v. Bransby, in the year 1727, in which a probate has been avoided even indirectly by the aid of a Court of Chancery; and this was effected, not by the decree or order of the Court of Chancery operating upon the decree of probate, but coercing the party to consent that the Probate Court should set aside its own decree. In the case of Gingell v. Horne, (9 Simon, 589) the Yice Chancellor says: “ The impression which has been fixed in my mind for several years is, that it is settled law that there is no method of escaping from the effect of probate when granted, unless in a case like that of Barnesly v. Powell, in which Lord Hardwick set aside the ground on which the probate was obtained.” It is said in some cases that a Court of Chancery in cases of wills of real estate can send out an issue to a Court of Law, and have the question of the validity of the will tried by a jury. But that occurs only in cases where no objection is taken to the jurisdiction, and does not mean that an action can of right be instituted in a Court of Chancery for the purpose of having the validity of a will determined by an issue to be sent out of that Court. In the case of Jones v. Jones (3 Merivale, 171) the Master of the Rolls says: “ It is impossible that at this time of day it can be made a serious question whether it be in this Court (of Chaneery) that the validity of a will, either of real or personal estate, is to be determined. * * How, although there may have been instances of issues directed on the bill of an heir at law, where no opposition has been made to that mode of proceeding, yet I apprehend that he cannot insist on any such direction. He may bring his ejectment, and if there be any impediments to the proper trial of the merits, he may come here to have them removed; but he has no right to have an issue substituted in the place of an ejectment.”

In the United States, the probating of wills is regulated in most States, and probably in all, by statutes in which the power to probate wills is conferred upon a special Court, a Probate or Surrogate Court, corresponding in this respect to the Ecclesiastical Courts of England. In some of the States, following the English system, the power to probate is only given in cases of wills of personal estate, leaving wills of real estate to be proved on the trial of any particular action depending upon it. In others, the power to probate is extended to both kinds of wills, but making it conclusive only in cases of wills of personal property, and onlj prima facie evidence, and liable to be disproved on trials of cases depending upon wills of real estate. In others, the power to probate applies to wills of both kinds, and the same conclusive effect is given to the probate in both cases.

Upon examining the decisions of the Supreme Court of the United States, and of the Courts of the several States, it will be found that they have uniformly held that the principles established in England apply and govern the cases arising under the probate laws of this country; and that in the United States, wherever the power to probate a will is given to a Probate or Surrogate’s Court, the decree of such Court is final and conclusive, and not subject, except on an appeal to a higher Court, to be questioned in any other Court, or be set aside or vacated by the Court of Chancery on any ground.

In the case of (Gaines v. Chew, (2 How. U. S. Rep. 645) the Court say: “In cases of fraud, equity has a concurrent jurisdiction with a Court of Law, but in regard to a will charged to have been obtained through fraud, this rule does not hold. It may be difficult to assign any satisfactory reason for this exception. That exclusive jurisdiction over the probate of wills is vested in another tribunal, is the only one that can be given.” In the case of Thompkins v. Thompkins, (1 Story’s Rep. 547) Judge Story, in speaking of the law of England, says: “ The validity of wills of real estate is solely cognizable by Courts of Common Law in the ordinary forms of suits; and the verdict of the jury in such suits, and the judgment thereon, are, by the very theory of the law, conclusive only as between the parties to the suit and their privies. But it is far otherwise in cases of personal estate. The sentence and decree of the proper Ecclesiastical Court, as to the personal estate, is not only evidence, but is conclusive as to the validity or invalidity of the will; so that the same question cannot be reexamined or litigated in any other tribunal. The reason is, that, it being the sentence or decree of a Court of competent jurisdiction directly upon the very subject matter in controversy, to which all persons who have any interest are or may make themselves parties, for the purpose of contesting the validity of the will, it necessarily follows that it is conclusive between those parties. For otherwise, there might be conflicting sentences or adjudications upon the same subject matter between the same parties; and thus the subject matter be delivered over to interminable doubts, and the general rules of law as to the effect of res judicata be completely overthrown. In short, such sentences are treated as of the like nature as sentences or proceedings in rem, necessarily conclusive upon the matter in controversy for the common safety and repose of mankind.” Then, after stating that by the laws of Rhode Island the Probate Courts have complete jurisdiction as to the probate of wills, whether the wills respect real estate or personal estate, or both, and making some remarks upon the effect of these local laws, he says: “ In short, there can be no difference in point of principle, where the Court of Probate has an absolute and positive jurisdiction, whether the will respects real estate or personal estate. In such case, the will must be equally open to controversy in all other Courts and suits, or it is closed in all. Yet no one pretends that the probate is not conclusive as to the personal estate of the testator, and the title of the executor thereto. * * * Upon the whole, in the absence of all controlling authorities under the local law, looking at the matter upon principle, I am of opinion that the probate of the present will Fy the Supreme Court of the State, being a Court of competent jurisdiction, is final and conclusive upon the question of the validity of the will to pass the real estate in controversy.”

In the case of Adams v. De Cook, (1 McAllister, 253) the Court say: “In this State, (California) where the general power of proving all wills is vested in a special jurisdiction known as the Prohate Court, the jurisdiction of the tribunal is as conclusive in regard to the probate of wills of real and personal estate, as is that of the Ecclesiastical Courts in England in relation to wills of personalty. If, therefore, there had been a probate of this document as a will by the appropriate tribunal in this State, such action, if final, would have been conclusive.” In the case of Derland and James v. Harrington’s Heirs, (29 Ala. 95) the Court say: “ The probate of a will, under any circumstances, is a proceeding in rem. It operates upon the thing itself. It defines, and in a great degree, creates its status. The status thus defined adheres to it as a fixture ; and the judgment or decree in the premises, unless avoided in some mode prescribed by law, binds and concludes the whole world.” In the case of Bogardus v. Clark, (4 Paige, 625) the Court say: “ It [a probate of a will of personalty] is in the nature of a proceeding in rem, to which any person having an interest may make himself a party, by applying to the proper tribunal before which such proceeding is had, and who will therefore be bound by the sentence or decree of such tribunal, although he is not in fact a party.” In Woodruff v. Taylor, (20 Vermont, 65) the Court say: “ The probate of a wfil I conceive to be a familiar instance of a proceeding in rem in this State. The proceeding is in form and substance upon the "will itself. Ho process is issued against any one, but all persons interested in determining the state or condition of the instrument are constructively notified by a newspaper publication to appear and contest the probate; and the judgment is, not that this or that person shall pay a sum of money or do any particlar act, but that the instrument is or is not the will of the testator. It determines the status of the subject matter of the proceeding. The judgment is upon the thing itself; and when the proper stej>s required by law are taken, the judgment is conclusive, and makes the instrument, as to all the world (at least so far as the property of the testator within this State is concerned) just what the judgment declares it to be.” In the case of Ballou v. Hudson, (13 Grattan, 682) the Court say: “ Considerations of public policy require that all questions of succession to property should be authoritatively settled. Courts of probate are therefore organized to pass on such questions, when arising under wills; and a judgment by such Court is conclusive whilst it remains in force, and the succession is governed accordingly. A judgment of this nature is classed amongst those which in legal nomenclature are called judgments in rem. Until reversed, it binds not only the immediate parties to the proceeding in which it is had, but all other persons and all Courts.”

The cases above cited have been selected from a great body of cases of like import, because, while showing the conformity of our laws with those of England, as to the conclusiveness of probate decrees, they also show the reason why they are conclusive, not only upon the parties who may be before the Court, but upon all other persons and upon all Courts; and that is, that it is not a proceeding to decide a contest between parties, but a proceeding in rem, to determine the character and validity of an instrument affecting the title to properly, and which it is necessary for the repose of society should be definitely settled by one judgment, and not left to be buffeted about by different, and possibly conflicting, judgments of various Courts.

In the State of California, the jurisdiction of the Probate Court is the same in regard to wills of real estate as to wills of personal estate.

The argument is strongly urged, that it will give great encouragement to fraudulent practices, and in many cases lead to the despoiling of rightful hens of then inheritance, if the decision of the Probate Court is not subject to be set aside by the Court of Chancery, on allegations of fraud. This consideration has not escaped the attention of the Legislature of this and other States, and laws have been passed to obviate this danger, so far as seemed practicable, without on the other hand exposing persons innocently dealing with estates of deceased persons to be harassed by subsequently discovered frauds. Hence, a period is provided in some States, and probably in all, in which, after judgment is pronounced, parties interested may have the decree opened, and the question of the validity of the will reexamined. This time varies in different States. We learn from some of the cases cited, that in Virginia it is seven years, in Alabama it is five years. In New York, as to personal property—as to which only the decree is conclusive—the time is one year. In this State, where there is no distinction between wills of real and personal estate, the time is but one year. In the Act to regulate the Settlement of the Estates of Deceased Persons, it is provided by section thirty as follows: “ When a will has been admitted to probate, any person interested may, at any time within one year after such probate, contest the same, or the validity of the will. For that purpose, he shall file in the Court before which the will was proved a petition, in writing, containing his allegations against the validity of the will, or against the sufficiency of the proof, and praying that the probate may be revoked.” By section thirty-six, as follows: “If no person shall,within one year after the probate, contest the same, or the validity of the will, the probate of the will shall be conclusive; saving to infants, married women and persons of unsound mind, a like period of one year after their respective disabilities are removed.” These provisions of our statute are but the embodiment of the principles of law which have been settled by the decisions of the Courts in England and the United States as being the most expedient and just, having regard to the rights of persons claiming the estate of a deceased owner, and the requirements of society that the title of property should, as soon as practicable, be made certain and withdrawn from the arena of litigation. A special tribunal is therefore established to decide upon the validity of wills, and the decision of that tribunal is made final and conclusive; giving, however, a right of review by the Supreme Court, and a further right of a new action or proceeding in the same tribunal within one year after the decision of the first proceeding, and securing the rights of persons under disabilities. The limitation of one year within which the new trial must be demanded is shorter than in some States, where the decree is made conclusive upon real as well as personal estate, but it is the same as that allowed in New York in cases of personal estate, and in providing which, direct reference was had to the conclusiveness of the decree. The Revisers, as a reason for allowing a rehearing within one year, say: “ The notice previous to proving a will is necessarily short, and must often be inadequate to apprise all the parties interested; and yet it would seem that' when once admitted to proof, the probate is perfectly conclusive.” Although one year as a bar to further litigation as to real estate held under a will is shorter than in other States, it is not disproportioned to our limitation of real actions as compared with other States. Twenty years is the usual time limited for bringing real actions in other States, while in ours it is only five. Nevertheless, the time as affecting real estate, is too short, in consideration of the policy which has been applied to the subject in other States; but whether this has arisen from an ill-judged policy of our Legislature, in seeking to quiet titles by too summary a process, or by inadvertence in not distinguishing between real and personal property, the remedy is not within the power of Courts.

This review of the cases decided in England and in the United States, establishes that it is a perfectly settled doctrine that the decision of the Court to which the proof of wills is confided, whether of real or personal estate, is conclusive upon the question of the validity or invalidity of the will; that this decision cannot be questioned collaterally in any other Court; and that it cannot be reviewed or set aside by the Court of Chancery on an allegation of fraud, or on any other ground.

The only decision in our own State directly upon the subject is in consonance with those of other States. In the case of Castro v. Richardson, (18 Cal. 478) the Court say: “ The Court of Probate have exclusive jurisdiction of matters relating to the proof of wills; and before a will can be read in evidence in support of a title under it, the party seeking to introduce it must show that it has been regularly admitted to probate. It was intended that the mode of proof pointed out by the statute should be uniformly pursued, and to give effect to that intention, it is necessary to maintain the exclusive authority of the Probate Courts. Ample provision is made for determining controversies arising in the course of then.’ proceedings ; and in rejecting a will or admitting it to probate they act judicially, and their acts possess conclusive force.”

Although the prayer of the complaint in this action asks a decree that the will in question be declared a forgery and of no effect, yet a distinction is claimed to exist as to the power of a Court of Chancery to set aside a decree of a Probate Court, if it must be conceded that the power does not exist to decide upon the validity of a will; but no cases are referred to in which such a distinction is taken. The only case referred to as countenancing such a view is that of Barnesly v. Powell; but in which, as we have seen, the Court disclaim the power to set aside the decree, and only exercised the power to set aside a deed of consent on which the decree rested; and by reason of having jurisdiction of the party for that purpose, decreed him to consent to the vacating the probate decree. Indeed, we are unable to see how the line is to be drawn, at least in this case, between the power to set aside the decree of probate and that to declare the will a forgery; because the only fraud charged to have been practiced in procuring the probate is the false testimony of witnesses as to the validity of the will. No fraud was practiced upon the heirs to procure a consent to the probate, as in the case of Barnesly v. Powell, nor any device to prevent a full investigation before the Probate Court. 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 Avas compelled to yield to the weight of authority. He says: “ Ho other excepted case is known to exist; and it is not easy to discover the grounds upon which this exception stands in point of reason or principle, although it is clearly settled by authority.” (1 Story’s Eq. Juris, sec. 440.)

It is said that the period of one year fixed for persons interested to have the probate of a Avill opened and reconsidered, is a limitation Avhich does not run against the State. It is not important to decide this; because, if it could be considered in that light, the only effect Avould be to authorize the State, to institute such proceedings in the Probate Court, not to confer jurisdiction upon the District Court, and no wish or purpose to institute such a proceeding is suggested in this case.

This case comes before us on an appeal from an order alloAving an injunction. The Court beloAV, after considering to some extent, but Avithout deciding, Avhether a District Court has jurisdiction to set aside the probate of a Avill, or to declare a Avill void, states that it has poAver to protect property by injunction pending another litigation ; and the injunction in this case appears to have been granted solely on this ground of jurisdiction, in order to prevent a dissipation of the property pending the litigation on the information for an escheat. But it is ahvays an absolute objection to the alloAvance of an injunction, for the purpose of protecting property during a litigation, that the complaint shows that the party seeking the injunction has no title to or interest in the property, and no claim to the ultimate relief sought by the litigation; in other words, that the complaint shoAVS no equity. This complaint sIioays affirmatively and distinctly that a will has been in due form admitted to probate, by Avhich the property in question is devised to a person whom it is not denied is capable of taking and holding it. If, as we have concluded, the District Court has no power to set aside that probate and Avill, or to disregard the probate and investigate the validity of the will on the trial of the information, then the existence of that probate, and the will established by it, is a bar to the ultimate relief sought in this action, and by the information to which this action is auxiliary, and as a consequence, precludes all reason or object for an injunction, and Avith it the right to one.

A law was enacted on the third of March, 1862, relating to this subject; but it is not necessary to consider what may be its effect in other cases, because, although it was brought to our notice, it was not urged by counsel that it could affect our decision, since it was not in force at the time this case was decided by the Court below, nor until after the case was pending before us on appeal. We must decide whether the order made by the Court below was correct or erroneous at the time it was pronounced.

The order appealed from must, therefore, be reversed, and the injunction dissolved.

On petition for a rehearing, Norton, J. delivered the following opinion—Field, C. J. and Cope, J. concurring.

A petition for rehearing has been presented in this case, principally for the purpose of obtaining a decision upon the point whether the State can contest before the Probate Court the probate or the validity of the will after the expiration of one year from such probate. We do not think it would be proper for us tó express an opinion upon this point in this case. Our opinion upon that point, whatever it might be, could have no effect in determining the case before us. Where a case is sent back for a new trial, it may be appropriate, though not strictly necessary for the decision of the question of a new trial, to give an opinion upon points that will arise in the Court below, and must be decided to finally terminate the case. But where such an opinion could have no effect upon the case in any stage of it, and was not necessary for our decision, its expression would have been not only superfluous, but, as we think, injudicious. It is doubtful if such an opinion would control the action of another tribunal in another case, or be operative as a judgment in our own Court. The law upon a question does not become settled by the mere opinion of Judges unnecessarily expressed, but only by a decision of the point when being the ground, or at least one of the grounds, of a judgment.

These reflections are also applicable to another point upon which a decision is asked, to wit: Whether the Law of 1862, giving jurisdiction to the District Courts to set aside a will and the probate thereof in certain cases, can have a retroactive effect. This question does not affect this case.

Another point, whether, under the effect of the Law of April 19th, 1856, relative to escheated estates, the State was prevented from proceeding for an escheat before the lapse of five years, might in one aspect of the case have been considered by us, but its decision in favor of the plaintiff would not have obviated the necessity of the decision we did make, nor do we see that its decision now would have the effect to end the litigation in this case.

Rehearing denied.