dissenting. — I dissent. The opinion of the department originally filed in this case, which has now been adopted by the court, decides two propositions, which in my opinion are untenable, and which if incorrectly decided not only operate unjustly in this case, but establish a most unfortunate precedent for others.
1. It is decided that the complaint fails to state any cause of action—is so fatally defective—in other wolds, that in the absence of even a general demurrer it will not support a decree limited in its operation to the annulment of the fraudulent deeds therein mentioned.
The sole ground upon which this conclusion is reached is that the complaint, although it shows clearly, that the plaintiffs are heirs to the decedent, with an undoubted right in the absence of a will to maintain the action in that capacity, also shows that they are named as devisees of the same estate in a will which has been suppressed or destroyed by the defendant, and which has not been admitted to or denied probate. Deduced to its simplest terms, the proposition is that under such circumstances, the heir has no title to the property whatever upon which he can maintain an action to recover its possession, or prevent its fraudulent alienation. He has no title as heir be*89cause lie may be proved to be a devisee, and lie has no title as devisee because the will has not been admitted to probate. The title, in short, pending a decree of the probate court, establishing the will or the intestacy of the decedent, is nowhere. There must, it seems to me, be some fatal flaw in the reasoning which leads to such a conclusion. The fallacy evidently consists in the assumption that on a given state of facts, a man may be in legal contemplation a devisee, and at the same time not a devisee ; for it is only upon this assumption that the plaintiffs can be denied all relief. One door is closed against them on the ground that they are devisees, another on the ground that they are not devisees.
To me it seems a sounder argument to say, that upon the facts alleged in the complaint, the plaintiffs either are or are not devisees. They must be either the one or the other, for there is no room for a third category in which to place them. If they are devisees, they may maintain the action in that capacity; if they are not devisees their title as heirs is undoubted. To hold that they are just sufficiently devisees to destroy their title as heirs, but not sufficiently so to enable them to make title under the will, is to draw too fine a distinction for the ends of justice — a fact made strikingly apparent by the results of the doctrine in this case, and its inevitable consequences in other cases that may be easily supposed.
The probate of an existing will, even when regularly and formally executed and uncontested, requires some time. At least ten days’ notice of the time and place fixed for hearing the proofs must be given, and in the matter of protecting estates from spoliation even so short a delay as ten days might be of most serious consequence. But when a will is contested, or when it has been fraudulently suppressed or destroyed, so that if proved at all, it must be proved in the face ot all the difficulties that attend the establishment of a spoliated or contested will, mouths, and even years, may elapse before a final decree establishing the will or the fact of intestacy. In such a case the heirs of the estate, whether named as devisees or not, could maintain no action for its preservation or protection until the decree of the probate court became final; for clearly, if they have no title as heirs when named as devisees in an unproved *90will, they would a fortiori have no title as heirs if the estate was devised to others.
But I need not concern myself about the latter case, the question here being as to the right of an heir who is at the same time named as devisee in an unproved will, to protect the estate which in any event belongs to him from spoliation or destruction, pending a final decree of the probate court admitting the will to probate or establishing the intestacy of his ancestor.
The decision of the court is that under such circumstances he cannot maintain an action to set aside and declare void a forged deed purporting to convey his ancestor’s estate to the forger. In other words, although years may elapse before a final decree in probate, the heir must stand by while the forger, vested with an apparently fair record title of the property, makes use of his opportunity to victimize an innocent purchaser; or, if the case were different, if the deed instead of being a forgery conveying no title, has merely been obtained by some fraud or deception, which will authorize a court of equity to set it aside at the suit of the heir or devisee, but in the mean time will enable the fraudulent grantee to pass a good title to an innocent purchaser for value, there will be the same inability on the part of the heir to sue. He cannot commence an action and file 'notice of lis pendens, but must wait until his status is determined, until it is settled whether he owns the estate as heir or devisee. When that is done he finds that the estate is vested in an innocent purchaser by a transfer which he has been denied all opportunity of preventing; and, if he could not maintain such an action, neither could he maintain au action to oust an intruder, or to enjoin the most destructive waste or spoliation. He is, in other words, utterly impotent to protect property which is certainly his by one title, if not by the other, merely because it has not been determined which is the good one.
I cannot forbear to express my dissent from a doctrine which to my mind is so unfounded and so destructive of the most valuable rights of heirs. It is scarcely necessary to point out the broad distinction between this case and Castro v. Richardson, and other similiar cases cited in the opinion of the court. In that case the only claim of title was based upon a devise in an *91unproved will. I venture to. say if the complaint had alleged that the plaintiff was also an heir it would not have been held that it showed no title.
My conclusion upon this branch of the case is that the complaint did disclose facts sufficient at all events to warrant a decree annulling the several deeds of conveyance therein mentioned. It most assuredly stated a cause of action, and the most that can be said of the allegations with respect to the will is that they rendered it ambiguous or uncertain as to the measure of relief to which the plaintiffs were entitled; but, conceding that they had that effect, all objections on the ground of ambiguity or uncertainty were waived by the failure to demur.
The opinion of the court just filed, while adopting the original opinion of the department, adds a clause allowing the plaintiffs to amend their complaint so as to assert their right as heirs. This permission appears to be entirely inconsistent with the decision. The record shows that the existence of an unproved will was as clearly established by the testimony at the trial as it was alleged in the complaint. The only amendment which the plaintiffs can possibly make is to omit from their complaint allegations of fact which are established by plenary proof. By doing so they may make a prima facie case, but all that the defendants will have to do to defeat their action will be to allege and prove the same facts, as they can easily and will most certainly do; for if the allegation of these facts by plaintiffs show that they have no right of action, the facts are necessarily material, and when they are alleged and proved by the defendants, the action must inevitably be dismissed.
2. It is also held in the opinion of the court that the devisee in a spoliated will can have no relief in equity agaiust the spoliator, unless he first establishes the will in probate. This part of the decision ignores the well-established distinction between the proceeding in rem, by which the probate court establishes a will so as to bind the heirs generally and the whole world, and a suit in equity by the party injured against the spoliator to charge him as a trustee with respect to the property gained by his fraud.
I admit the correctness of the doctrine that a court of equity, as such, has no power to establish a will even in a case of *92spoliation so as to bind the heirs generally, although there are cases of spoliated wills where such power has been asserted and exercised. (Bell v. Stiles, 2 N. J. Eq. 220.) The current of authority, however, is the other way, and I think the sounder and more reasonable view is that for the establishment of a will in the strict sense the jurisdiction of the probate court is exclusive. But the same law-writers who uphold this doctrine, admit an exception or distinction in case of a spoliated will. Professor Pomeroy, for instance, who is cited in support of the prevailing opinion, when discussing this specific point, uses the following language: “ When instruments have been fraudulently suppressed or destroyed for the purpose of hindering or defeating the rights of others, equity has jurisdiction to give appropriate relief by establishing the estate or rights of the defrauded party”; and he gives the following illustration: “If an heir should suppress a deed or will, equity would confirm the title of the grantee or devisee.” (Pomeroy’s Equity Jurisprudence, sec. 919, and note.) Other law-writers state the doctrine in substantially the same terms. (6 Wait’s Actions and Defenses, 377; 3 Redfield on Wills, ch. 1, see. 7; and see authorities cited at 2 N. J. Eq. 239.) The only case which I have found which holds that a court of equity can afford the defrauded devisee no relief against the spoliator is the case of Morningstar v. Selby, cited in the opinion of the court. None of the other decisions there cited was made in a case of spoliation, and the general expressions therein contained to the effect that a court of equity, as such, has no power to establish a will, have no application to an action by the defrauded legatee against the spoliator.
Not only the weight of authority, but every consideration of justice and expediency would seem to support the view that a court of equity is not without the power to afford a remedy for so gross a wrong, where, by the very act of the spoliator, the injured party has been deprived of all other remedy.
It is contended that since the probate court is invested with power to take the proof of lost or destroyed wills, there is no necessity for resorting to equity in such a case, and no ground for its interposition. It is true that a lost or destroyed will may be proved and established in the probate court if there is *93sufficient evidence of its execution and its terms; and this is a wise and necessary provision for the enforcement of the rights of devisees and legatees against heirs generally. But for the protection of innocent heirs, and the prevention of frauds, the law has at the same time wisely provided that a lost or destroyed will shall not be admitted to probate, unless its provisions are clearly and distinctly proved by two credible witnesses. (Code Civ. Proc., sec. 1339.) Mow it might often happen, as it has happened in this case, that there would be but one living witness by whom a bequest or devise in a spoliated will could be proved. In such a case the will could not possibly be admitted to probate so as to bind innocent heirs, no matter how clear the evidence of its existence and its destruction by another heir, because, as to the innocent heirs for whose protection tire law was enacted, there would not be sufficient evidence of its provisions; but as to the spoliator, the case would be different, because the rule of evidence would be different. Everything is presumed against the spoliator, and the spoliation being clearly proved, comparatively slight evidence of a bequest thereby defeated would be satisfactory as against him, and therefore sufficient. To hold otherwise would be to convert a provision intended as a shield for the innocent into an instrument of fraud. A will could be destroyed by an heir, and he could admit or even boast of the act, but, unless the provisions of the will could be clearly established by two credible witnesses, the legatee or devisee could have no relief against the actual perpetrator of the fraud. I am unwilling to admit that a court of equity is powerless to grant relief in such a case. It seems, on the contrary, to be precisely the case in which equity is bound to interpose, upon the ground that there is no remedy elsewhere. The result of its interposition is not to usurp the functions of the probate court by establishing the will in a strict sense, so as to bind all the world, but merely to fasten a trust upon the property coming to the hands of the spoliator in favor of the person defrauded. (Civ. Code, sec. 2224.)
The case is strictly analogous to the numberless cases in equity arising under the Statute of Frauds, in which rights in lands have been effectuated upon the ground of implied or resulting trusts in the absence of the written evidence of the *94right required by the statute. Section 1339 of the Code of Civil Procedure, requiring the evidence of the two creditable witnesses to establish a lost will is nothing more nor less than a statute of frauds, and can no more be used as a protection for fraud in a court of equity than other statutes designed to effect the same purpose.