". . . this question cannot be litigated in a probate court, but the remedy of a person injured by the violation of a contract to make testamentary provision for another must be pursued in a court of equity. ( Fuller v. Nelle, 12 Cal.App.2d 576, 580 [ 55 P.2d 1248]; Estate of Rolls, 193 Cal. 594, 596 [ 226 P. 608].)" [8] The opinion in Estate of Dabney, 37 Cal.2d 672, 676 [ 234 P.2d 962], points out the difference in jurisdiction between a probate court and a court of equity in this state:
See 20 Cal.L.Rev. 217, 218.Rolls v. Allen, 204 Cal. 604, 607 [ 269 P. 450]; Notten v. Mensing, 3 Cal.2d 469, 473-476 [ 45 P.2d 198]; Bank of California v. Superior Court, 16 Cal.2d 516, 524 [ 106 P.2d 879]; Brown v. Superior Court, 34 Cal.2d 559, 564 [ 212 P.2d 878]; Fuller v. Nelle, 12 Cal.App.2d 576 [ 55 P.2d 1248]; Sonnicksen v. Sonnicksen, 45 Cal.App.2d 46, 52-53 [ 113 P.2d 495]; Ryan v. Welte, 87 Cal.App.2d 897 [ 198 P.2d 357]; Shive v. Barrow, 88 Cal.App.2d 838, 843 [ 199 P.2d 693]; West v. Stainback, 108 Cal.App.2d 806, 814-815 [ 240 P.2d 366]; anno.: 169 A.L.R. 9, 58.Brown v. Superior Court, 34 Cal.2d 559, 563-565 [ 212 P.2d 878].
The same general principle — that one over whose claims the probate court has no jurisdiction is not bound by that court's adjudications — has also found expression in cases dealing with rights to estate properties based on asserted contracts by the decedent to make a particular testamentary disposition. (See Estate of Cropper (1947), 83 Cal.App.2d 105, 108 [ 187 P.2d 780]; Estate of Harris (1937), 9 Cal.2d 649, 664-665 [ 72 P.2d 873]; Fuller v. Nelle (1936), 12 Cal.App.2d 576, 580 [ 55 P.2d 1248].) In Estate of Cropper an appeal from an order of partial distribution, taken by one who had instituted an independent suit in equity to enforce a trust upon estate properties based upon an alleged contract by decedent to leave a will in appellant's favor, was dismissed on the ground that since appellant "was not a party to the proceeding . . . for partial distribution and her rights are in no manner affected thereby, she is not aggrieved by the order and has no right to appeal therefrom."
(Civ. Code, § 83, subd. 3.) Accordingly, the cases cited by defendant for the "universal rule" that jurisdiction of the subject matter cannot be conferred or waived by consent, agreement or stipulation ( Van Horn v. Justice'sCourt, 216 Cal. 235, 242 [ 13 P.2d 704]; Standard Oil Co. ofCalifornia v. State Board of Equalization, 6 Cal.2d 557, 559 [ 59 P.2d 119]; Fuller v. Nelle, 12 Cal.App.2d 576, 580-581 [ 55 P.2d 1248]; Vaughan v. Roberts, 45 Cal.App.2d 246, 253 [ 113 P.2d 884]) have no application here. Nor can defendant successfully challenge the authority of the guardian to execute this stipulation on behalf of his ward, Mr. Caruthers.
Although appellant presents a plausible argument as to why the probate court herein should take jurisdiction to determine the issue of such an oral agreement, this question cannot be litigated in a probate court, but the remedy of a person injured by the violation of a contract to make testamentary provision for another must be pursued in a court of equity. ( Fuller v. Nelle, 12 Cal.App.2d 576, 580 [ 55 P.2d 1248]; Estate of Rolls, 193 Cal. 594, 596 [ 226 P. 608].) [16] We are of the opinion that such an oral agreement if entered into in 1904 prior to the amendment requiring such an agreement to be in writing would be valid, if it could be established.
It is without jurisdiction to determine the rights of parties asserting title, as appellant does, adversely to the estate and to those who take by will or the laws of succession. ( Estate of Harris, 9 Cal.2d 649, 664 [ 72 P.2d 873]; Estate of Rolls, 193 Cal. 594, 599 [ 226 P. 608]; Fuller v. Nelle, 12 Cal.App.2d 576 [ 55 P.2d 1248]; Bath v. Valdez, 70 Cal. 350 [11 P. 724].)" [9] Thus the rights of appellant under the claimed oral agreement described in the cross-complaint could not have been adjudicated by the court in the heirship proceedings but must be determined in an independent action in equity in which appellant's right to quasi-specific performance may finally be decided. It necessarily follows that the decree determining heirship, affirmed in Estate of Smith, supra, is not res judicata of appellant's claims under the oral agreement alleged in the cross-complaint.
" Fuller v. Nelle, 12 Cal.App.2d 576 [ 55 P.2d 1248], also has many features that resemble the case at bar. There Fuller and his wife made testamentary dispositions by will pursuant to an agreement between them.
It is without jurisdiction to determine the rights of parties asserting title, as appellant does, adversely to the estate and to those who take by will or the laws of succession. ( Estate of Harris, 9 Cal.2d 649, 664 [ 72 P.2d 873]; Estate of Rolls, 193 Cal. 594, 599 [ 226 P. 608]; Fuller v. Nelle, 12 Cal.App.2d 576 [ 55 P.2d 1248]; Bath v. Valdez, 70 Cal. 350 [11 P. 724].) The rights of appellant are not concluded or affected by the decree of partial distribution.
ALLEGATIONS OF FRAUD Citing the facts in the cases of Brazil v. Silva, supra, and Fuller v. Nelle, 12 Cal.App.2d 576 [ 55 P.2d 1248], defendants contend that there are no similar allegations of actual fraud in the complaint here. While the word "fraud" is not used and while the facts here are different than those shown in the cited cases, the complaint does allege the fact that Daniel in complete disregard of his agreement conveyed and devised the property to others than those entitled to it under the agreement.
Testimony as to what the witness heard Mrs. Golles say, out of the presence of Mr. Golles, would not have been binding upon Mr. Golles, and it is not binding upon his representative. In the case of Fuller v. Nelle, 12 Cal.App.2d 576 [ 55 P.2d 1248], which involved alleged mutual and irrevocable wills, testimony of a third person, as to what the first decedent said relative to carrying out the mutual wills of the testators, was received. That case is distinguishable from the present case in that the statement therein was made in the presence of the second decedent.