This is an action brought in a District Court, prior to the adoption of the new Constitution, by the executors of the will of one Reese, againt the residuary legatees, for the purpose of obtaining a construction of the will. The plaintiffs allege that the will was probated in San Mateo County,where the administration is still pending; “ that doubts have arisen and are entertained by the plaintiffs and other parties to this action as to the true intent and construction of said will, and particularly the residuary clause aforesaid, and that the plaintiffs are desirous that a judicial determination may be made of the various questions arising on said will involving the points and particulars hereinafter mentioned, and a construction given to the same, so far as may be necessary to guide and direct the plaintiffs in the discharge of their trusts as executors as aforesaid, and to settle and finally determine the rights of the parties in the premises.”
“ That the particular questions on which the plaintiffs desire the opinion and judgment of the Court, relate to the claims of the respective legatees aforesaid as to the meaning *413of the residuary clause of said will, and they ask the Court to construe said will and declare the true intent and meaning of the said residuary clause, and especially to determine in what proportion the estate to be distributed under said clause is to be divided between the said legatees therein named, and what portion each of the said legatees is entitled to receive.”
“ That the determination of said questions is necessary for the guidance of the plaintiffs as executors aforesaid, and the settlement and distribution of the estate.”
“ Wherefore, the plaintiffs pray' that the questions arising upon said will as aforesaid, and such other questions of difficulty or doubt in the construction of said will as may be presented by the answers of the defendants, or any of them, or otherwise properly brought before the Court, may be judicially determined and adjudged, to the end that the same may be finally settled, and that the plaintiffs may be directed how to proceed in the execution of their trust; and for such other and further relief as the Court may deem proper.”
The defendants answered, setting up their respective claims to share in the residue of the estate, but no question is made by either party as to the jurisdiction of the Court. That question seems to have been studiously passed over in the pleadings. Attention, however, was directed to it on the argument.
After listening to elaborate and learned arguments regarding the points presented, I am free to say that, in my opinion, as a matter of law, the view taken by the Court below as to the proper construction of the will is correct; but I can not join in a vote to affirm the judgment, because by so doing I should tacitly join in saying that the Court below had jurisdiction, and that under the late Constitution the District Courts had at least concurrent, if not exclusive, jurisdiction in many matters concerning the administration of the estates of deceased persons. In my opinion, the action should have been dismissed by the Court below for the following reasons:
1. Under our system, a Court of Equity, as such, has no jurisdiction over the subject-matter of this action. The claim of jurisdiction is based upon the clause in the late Constitu*414tion, article vi, § 6: “The District Courts shall have original jurisdiction in all cases in equity.” This language would seem to fully support the claim of jurisdiction; but let us see how far that would carry us. Formerly equity had jurisdiction:
I. It had general jurisdiction over cases of administration. (1 Story’s Eq. Jur., §§ 530-589.) The Ecclesiastical Courts or the Ordinary could appoint an administrator, could settle an account of an administrator, and direct the delivery of a legacy to the legatee; but could not compel an administrator to render an account, nor compel many other acts necessary to the settlement of the estate; therefore, equity assumed jurisdiction, to the end that justice might be done. Does any one now suppose, that under our system, it is necessary, or even admissible, to go into equity to compel an accounting by an administrator? Yet, the entertaining of a bill to compel an administrator to render an account is as much within the clause “ all cases in equity,” as is a bill for the construction of a will before distribution.
II. A creditor could not prove his claim before the Ecclesiastical Court or the Ordinary, nor obtain its payment. (See Story, supra) His resort was to a Court of Equity, to prove his debt and have it established, and then to have his action at law to recover. What lawyer in this State, having a claim against the estate of a deceased person for a debt, would go into a Court of Equity to have the claim established? And yet, the establishing of a debt against the estate of a deceased person is as much within “all cases in equity” as is the construction of a will before distribution.
III. If a testator did not dispose of the residue of his estate, “ the spiritual courts had 'no jurisdiction whatever to enforce a distribution.” So, equity assumed jurisdiction and enforced a trust in the executor in favor of the heirs-at-law. Does any one in this State suppose that if there be a residue undisposed of by the will, a Court of Equity can be resorted to to ascertain the heirs-at-law, and to have a trust declared in their favor, instead of proving in the Probate Court the heirship and obtaining distribution therein ? And yet, the ascertainment of the heirs-at-laws and the declaration of the *415trust are as much the subject of equity jurisdiction, as is the proper construction of a will before distribution.
IV. The Ordinary had no power over the real estate of a deceased-person, and could not subject it to the payment of debts; therefore, if the personalty was insufficient, recourse was had to a Court of Equity to subject the realty to the claims of creditors. If the claim made in this case be correct, in the few words said upon the argument, as to the power of the Legislature to confer upon the Probate Courts any equitable jurisdiction, it must necessarily follow that the Legislature had no authority to confer upon the Probate Courts power to sell real estate; and it would also necessarily follow that all sales of real estate had by the Probate Courts in this State conferred no title upon the purchasers—propositions that would not be favorably entertained for a moment. And yet, subjecting real estate to the payment of the debts of a deceased person is as much within “ cases in equity” as is the construction of a will before distribution.
V. In England, the Spiritual Court or the Ordinary, and in America, the Surrogate, as such, had no authority, where property was left in trust for an illegal or void purpose, to so determine, but resort was had to a Court of Equity, which determined the matter, and declared a trust in favor of the residuary legatee or heir-at-law. I have no doubt that under our system the Probate Courts could determine in such case, and make a proper decree of distribution; and yet, such matter is as much within equity jurisdiction as is the subject-matter of the present action.
VI. In regard to legacies, no suit would lie at law to recover them, unless the executor had assented thereto; but the remedy was exclusively in the Ecclesiastical Courts, or in Courts of Equity. In Ex parte Smith, 53 Cal. 204, this Court has sanctioned quite a different course; yet, the recovery of a legacy is as much a “ case in equity” as is the case under consideration.
VII. Bills of discovery were essentially a part of equity jurisdiction. Referring to §§' 1458-1461, Code Civ. Proc., will it be claimed that those sections are void as trenching upon equity jurisdiction ? And yet, is not the relief therein *416intended, to be afforded as much within “ cases in equity” as that at bar ?
VIII. Another branch of jurisdiction peculiarly appertaining to equity was the appointment of guardians for infants, idiots, and lunatics, and the care and management of the persons and property of the wards. Hot a word in the Constitution in terms takes that jurisdiction away from the catalogue of “ all cases in equity.” Yet, if a strict construction is to be given, what becomes of a jurisdiction exercised for as many years as the State has existed, and applicable to an immense amount of property ? If, under the Constitution, the Legislature had no authority to take from Courts of Equity any portion of their former jurisdiction and vest it in a court not strictly one of equity jurisdiction, a result would follow not profitable to contemplate, except for illustration.
IX. Specific performance is essentially a branch of equity jurisdiction. Under §§ 1597-1607, Code Civ. Proc., many deeds have been made in this State by executors and administrators, upon orders made by Probate Courts, and the titles thereby attempted to be made have been acted upon and recognized as valid. Yet -the compelling of an executor or administrator, representing a deceased person who was bound by contract in writing to execute a deed, is as much a case in equity as is the matter now before us.
I am aware of what is said in 2 Story’s Eq. Jur., §§ 1058-1074, concerning the jurisdiction of courts of equity to construe wills in aid of their due execution; but I shall show that, in my opinion, what is there said has no application in this State, so far as concerns questions similar to this under consideration, arising during administration. Just here I will allude to a case to which reference has been made as sustaining the proposition that the District Court had jurisdiction, viz.: Griggs v. Clark, 27 Cal. 427. That was an action brought by an administrator against a surviving partner of the intestate, to compel an accounting of the partnership affairs of the intestate and the defendant, and the Court, Crocker and Horton, JJ., concurring, say: “ It is contended that the Probate Court, in which the proceedings for the settlement of the estate were pending, had acquired jurisdiction of the subject-matter of the present action, and therefore the *417demurrer should have been sustained. The jurisdiction vested in the Probate Court does not divest the District Courts of their general jurisdiction as Courts of Chancery over actions of this character.” If that decision is authority to sustain the action at bar, I fail to see it.
The case of Payne v. Payne, 18 Cal. 291, is no authority in this case; that was an amicable suit, as this is; neither party raised the question of jurisdiction; it was not passed upon; it does not appear from the case, as reported, that the estate was being administered upon in the Probate Court.
2. The Probate Court of San Mateo County had exclusive jurisdiction of the subject-matter of the action, and to determine to whom and in what proportions the estate of the testator should be distributed.
The Constitution of this State, as originally adopted, provided, article vi, § 1, that “ the judicial power of this State shall be vested in a Supreme Court, in District Courts, in County Courts, and in Justices of the Peace, and in such inferior Courts,” etc.; and, § 8, the County Judge shall “ perform the duties of Surrogate or Probate Judge.” It is not necessary to consider the force and effect of those provisions, further than to say that all the cases in this Court upon this subject, from Wilson v. Roach, 4 Cal. 362, to Payne v. Payne, 18 id. 291, arose thereunder. In 1862, the Constitution was amended so as to read, article vi, § 1: “ The judicial power of this State shall be vested in a Supreme Court, in District Courts, in County Courts, in Probate Courts,” etc.: and § 8, “ The County Judges shall also hold Probate Courts, and perform such duties as Probate Judges as may be prescribed by law.” Then, at least, the Probate Courts were distinctly recognized as, if not established, and were, and since have been, constitutional Courts. "Very soon after the adoption of these amendments, this Court, In the Matter of the Will of Bowen, 34 id. 682, Rhodes, J., delivering the opinion, referring to § 8, said: “ This is a comprehensive grant of probate jurisdiction, and as there is nothing in the article granting concurrent jurisdiction, the grant to the Probate Courts must be held exclusive. There may be cases involving matters peculiar to Probate Courts of which the District Courts may have juris*418diction; but matters like the probate of a will, the granting of letters testamentary, or of administration, the allowance of claims, the settlement of the accounts of the executor or administrator, etc., were well understood at the time of the adoption of the amendments to the Constitution as falling within the probate jurisdiction. If, without any express grant, like that in the former Constitution, the District Courts can be vested by the statute with jurisdiction of the matters provided by § 20 of the Probate Act, the jurisdiction to determine every question of fact arising in the Probate Courts may likewise be transferred to the District Courts, and the Probate Courts left as the mere registers of the decisions of the District Courts.”
In England, the Ordinary, and in America the Surrogates, until their jurisdiction was enlarged, were little else than registers.
The amendment to § 8 says: “ Shall hold Probate Courts and perform such duties as Probate Judges as may be prescribed by law.” This provision takes from courts of equity every matter relating to “probate” of which they had formerly had jurisdiction, and confers it upon the Probate Courts. That leads me to consider what is probate. Probate, in England, in the absence of an enlarged meaning by statute, signified only the proof of a will either in solemn or common form. (2 Black. Com. 508.) Is that all that the framers of our Constitution meant ? or, rather, did they not mean, that which, all matters which, at the time of using the words, was and were understood to be a part of or parts of probate business? Abbott, in his Law Dictionary, title “ Probate Court,” says: “ In many of the United States, Court of Probate, or Probate Courts, is used as the title of the court having general probate jurisdiction; that is, to take proof of wills, to issue letters testamentary, letters of guardianship and of administration, to superintend the administration of estates, and accounting of representatives and trustees, and many cognate matters.”
Under the Constitution, the Legislature, in prescribing by law the duties of the Probate Courts, did confer upon them power to grant letters testamentary, of administration, and guardianship, the management of estates of deceased persons *419and wards, the compelling and settling of accounts, the discovery of effects, the sale of real estate, the payment of debts and the distribution of “the residue of the estate in the hands of the executor or administrator, if any, among the persons who by law are entitled thereto.” This last clause necessarily involves the right and power to ascertain and determine who are entitled thereto. The power was ample, the machinery was ample. The Probate Courts did not require the aid of any other Court in ascertaining any questions of fact before them, and from their decisions an appeal lay directly to the Supreme Court.
From these views, thus briefly stated, I am of opinion that, under the late Constitution, all matters concerning the administration of estates of deceased persons, such as the matters above referred to, were not to remain “cases in equity,” but were transferred and became probate matters; and that in the creation of the various Courts, and in defining their respective jurisdictions, it was intended that one should not trench upon the other, and that there should not be, as to probate matters, concurrent jurisdiction.
The reason why, in former times, equity assumed jurisdiction of the various matters hereinbefore referred to, was because, in England, the Ecclesiastical Courts and the Ordinary, and in America the Surrogates, had no jurisdiction, and had no machinery for affording relief. Those reasons do not exist in this State. With us, the Probate Courts had jurisdiction conferred, and had ample machinery provided, to hear and determine all matters necessary to a full administration of an estate, as between all persons interested in its administration as such.
This view is not in conflict with Haverstick v. Trudel, 51 Cal. 434; nor with Bush v. Lindsey, 44 id. 121. It is supported by Auguisola v. Arnaz, 51 id. 435, where the Court, Rhodes, J., said: “ The Probate Courts have exclusive jurisdiction of the accounts of executors and administrators, and of the final distribution of the estates of decedents.”
I admit there may questions arise, as suggested in 51 Cal. 435, supra, when the interposition of a Court of Equity may be necessary. (See Theller v. Such, Department One of this Court, opinion filed May 16th, 1881, in which opinion T *420concur, as presenting a case clearly within equity jurisdiction); but the case at bar does not present such a question. In my opinion, the construction of the will in question was as much within the power of the Probate Court of San Mateo County, for the purpose of determining the persons to whom and the proportions in which the residue of the estate should be distributed, as would have been the hearing of evidence and determining as to heirship if the deceased had died intestate.
3. Even admitting, which I do not, that there was concurrent jurisdiction in the District Court and in the Probate Court, there is a well-known principle that where two separate tribunals have jurisdiction over a subject, that which first takes jurisdiction shall have exclusive jurisdiction. The Probate Court, by probating a will, acquired and had jurisdiction of the subject-matter of the ■ estate, to and including the ascertainment of the persons entitled to the residue and its distribution among them; and no other tribunal could take jurisdiction of any matter concerning the administration of the estate, of which the Probate Court could in any event have jurisdiction. It therefore follows, that as the Probate Court was the only Court in which a will could be probated, no other Court could acquire any jurisdiction over the subject-matter of this action. Was the Probate Court to suspend its functions, and arrest its proceedings, until it should receive the advice of another Court ? Would that advice, when given, be binding upon the Probate Court ? If so, by what authority? Where is it so set down? Suppose this Court should affirm the judgment of the Court below, and the decree should be taken to the successor of the Probate Court, would that decree be binding upon that Court ? No appeal from the Probate Court is here—its judgment has not been given.
4. The executors have no concern as to how the estate should be distributed. It is quite immaterial to them whether the nieces should receive one sixth, one eighth, or one eleventh. If a decree had been made by the Probate Court distributing to any legatee more than the executors deemed proper, they could not have appealed from the decree. (Bates v. Ryberg, 40 Cal. 465; Estate of Wright, 49 id. 550.) If so, they could *421not file a bill to be instructed as to a matter about which they had no concern. In the complaint, they ask the Court “ to determine in what proportion the estate is to be distributed,” and “ what portion each of the said legatees is entitled to recover ;” “ that the determination of such questions' is necessary for the guidance of the plaintiffs as executors aforesaid, and the settlement and distribution of the estate.” Their functions were not to be informed how to distribute the estate; their functions were to file and settle their accounts, showing the balance for distribution, and petition that such balance be-distributed to those entitled; the Court was then to cause notice to be given to all concerned, and the parties claiming were to present their reasons therefor to the Court, not to the executors; and the Court was to determine what persons were entitled, and in what proportions. As to such determinations, the executors had no voice—they could not be heard— they had no appeal. How can they file a bill asking for advice when the advice asked is entirely immaterial to them? The executors were officers of the Probate Court, and of no other. To that Court only could they look for advice and direction as to any matter within its jurisdiction, even where the advice is material to them.
The judgment should be reversed, with directions to dismiss the complaint.