EMILY A. HUMPHRY, Appellant, v. THE PROTESTANT EPISCOPAL CHURCH IN THE DIOCESE OF LOS ANGELES (a Corporation), Respondent, 154 Cal. 170

HENSHAW, J. This action was brought to determine title to an undivided one-tenth interest in lot No. 11 of the Oceanside tract in the county of Santa Barbara. The facts as to the title, over which facts there is no dispute, are the following: Lot eleven, with other lots, was owned by Elizabeth A. Humphry at the time of her death. Upon her death, intestate, an undivided one tenth descended to her sister, Mary E. Richardson. Defendant acquired title to the other undivided nine tenths. Mary E. Richardson died testate before defendant had been able to secure a deed to her one tenth.

Defendant did secure a deed to this one tenth from Mrs. W. N. Clothier, sole heir at law of her mother, Mrs. Mary E. Richardson, but by her will Mrs. Richardson had specifically devised her interest in this lot in trust for the maintenance of her brother, George Ellery, empowering the trustees to sell any or all real estate whenever it might appear to them for the best interest of the estate so to do. If this trust was valid, Mrs; Clothier’s deed to defendant conveyed nothing.

The defendant likewise obtained a deed to the same undivided one tenth from George Ellery, the beneficiary under the trust, but indisputably George Ellery had no title to convey, being a mere beneficiary, entitled to the income or such portion of the principal as the trustees might award for his support. Thereafter Emily. A. Humphry, this plaintiff, obtained a conveyance from the executor and trustee of the estate of Mary E. Richardson of all right and title to the land in question, and she obtained a like deed from all of the heirs at law of Elizabeth A. Humphry.

Subsequently, after settlement of the final account in the estate of Mary E. Richardson, a petition for final distribution was filed and the property was distributed. The petition for distribution asked for the distribution of the residue of the estate remaining in the hands of the petitioner, and set forth in its

schedule certain parcels of real estate, amongst which was not enumerated lot eleven. It alleged the transfer by deed of all the estate’s interest in the residue to Emily A. Humphry, and prayed that there be distributed to Emily A.

Humphry “the whole of the said residue of the estate of said decedent situated in said counties of Ventura and Santa Barbara of the state of California.” The decree of distribution adjudged “that the residue of said estate hereinafter particularly described, and any other property not now known or discovered, which may belong to said estate, or in which said estate may have an interest, be and the same is hereby distributed to the said Emily A. Humphry.” The decree in the estate of Elizabeth A. Humphry likewise decreed distribution to this plaintiff of all of the residue of the estate of the said Elizabeth A.

Humphry. Upon the trial plaintiff relied for her title upon the decree of distribution, contending that, under the clause above quoted, she obtained title to the undivided one-tenth interest in lot eleven, even though it had not been particularly described in the petition for distribution. By defendant it was contended that there was not only a failure to distribute this interest to plaintiff, but an intent not to distribute it, and that therefore she took no title. The court decreed that neither plaintiff nor the defendant had title to the disputed one tenth, and gave judgment for costs.

From this judgment plaintiff appeals. . If the decree of distribution is to be construed according to its language, it certainly, in confirming title in Emily A. Humphry, to “any other property not now known or discovered” vested her with the title to the disputed undivided one tenth of lot eleven. The attack upon this decree of distribution being collateral, its invalidity or insufficiency in any respect must be made to appear on its face.

Respondent’s contention that there was a manifest design upon the part of the court in probate not to distribute this undivided one tenth draws support only from the fact that in the petition for distribution this undivided one tenth was not specifically described. The argument in this connection is that the proceeding is one in rem; that an initiatory step to the obtaining of jurisdiction is the filing of the petition; that the res over which the court acquires jurisdiction is the property, and only the property described in the petition for distribution. But herein respondents are in error.

The res in this case was the residue of the estate, and, notwithstanding the omission of the petition specificially to describe the undivided interest in this lot, that the court intended to distribute the whole residue whether described or undescribed, known or unknown, is made plainly manifest from the language which it employs. Moreover, upon final distribution it is the duty of the court to distribute all of the residue to the persons entitled (Code Civ.

Proc., sec. 1665), and its order and decree in this regard are conclusive as to the rights of the heirs, legatees, or devisees, and those holding under them. (Code Civ. Proc., sec. 1666.) This is the precise construction which was put upon a like decree of distribution in Smith v. Biscailuz, 83 Cal. 344, [21 Pac. 15, 23 Pac. 314].

There, too, the decree distributed “other property not known or discovered which may have belonged to the decedent and in which his estate may have an interest,” and it was held that such a decree passed title to lands of the decedent omitted from the particular description; that it was not void for uncertainty of description, the general description being sufficient upon collateral attack to include omitted lands which might be shown by evidence aliunde to have in fact belonged to the decedent at the time of his death.

It is not seriously disputed by respondents that if the decree of distribution be held to cover the disputed one-tenth interest, and to have in fact confirmed title to that interest in the plaintiff, such decree is free upon this collateral attack from any question as to the validity of the trust to George Ellery. It having been determined, as above set forth, that the decree does dispose of this land, it follows that the judgment of the trial court was erroneous. It is therefore reversed $,nd the cause remanded. Lorigan, J., and Sloss, J., concurred.