A petition for a rehearing was granted in this case and it is therefore before us for further consideration. The principal reason for granting the petition was to correct and expunge the following misstatement of law which appeared in the last paragraph thereof: “The appellants here are not the heirs of Jane Simonton and take nothing by her will.”

The court does not wish to be misunderstood as to the specific personal property subject to litigation. Appellants are entitled to litigate in this action only the one-half of the personal property alleged to have been omitted from G. W. Simonton’s estate, and which property was claimed by them as remaindermen under the will of G. W. Simonton, deceased, adversely to the estate of Jane Simonton, deceased, and not as her heirs or under her will. The decree of distribution as made in the estate of Jane Simonton as to all other property has become final and is not subject to further disturbance under the issues as framed and the law as settled in the matter of the Estate of Jane Simonton, 183 Cal. 53 [ 190 Pac. 442 ]. To what extent, if at all, the record in the proceedings of the case last mentioned may be urged as a bar to the present action for the remainder in the other half of the property, after the termination of Jane Simonton’s life estate therein, cannot now be determined, as the record is not properly before us, and we are not in a position to say, and therefore express no opinion on the subject.

We re-adopt as the law of the case the following portions of our former opinion enlarged by an insertion of new matter which appear without the quoted portions:

That the fraud described by the complaint is extrinsic in character is not a debatable question under the authorities of this state. The case of Silva v. Santos, 138 Cal. 536 , at page 541, dealt with the settling of a guardian’s account and his discharge, and as it marshals the authorities of this state and makes reference to others, we quote at length: “The principal question argued in the briefs is whether, upon the admitted facts stated in the complaint, the judgment of the court settling the guardian’s account and discharging him from his trust, from which no appeal was taken, is final. Beyond dispute the jurisdiction of the superior court, sitting in probate, is both original and exclusive. (Goad v. Montgomery, 119 Cal. 552 [ 63 Am. St. Rep. 145 , 51 Pac. 681 ]; Estate of Strong, 119 Cal. 663 [ 51 Pac. 1078 ]; Sohler v. Sohler, 135 Cal. 323 [ 87 Am. St. Rep. 98 , 67 Pac. 282 ]. See, also, the earlier cases of Graff v. Mesmer, 52 Cal. 638 ; Allen v. Tiffany, 53 Cal. 17 ; Brodrib v. Brodrib, 56 Cal. 564 .) Conceding this, however, appellant contends, and we think the law is, that equity has jurisdiction to interpose and furnish appropriate relief where a judgment or order has been attained by the employment of frauds and artifices such as would justify, interferences of such court. Appel lant cites Dean v. Superior Court, 63 Cal. 473 ; Tobelman v. Hildebrandt, 72 Cal. 313 [ 14 Pac. 20 ]; L ataillade v. Orena, 91 Cal. 565 [ 27 Pac. 924 ]; Pomeroy’s Equity Jurisprudence, sec. 1007. To these may be added the more recent cases of Curtis v. Schell, 129 Cal. 208 [ 79 Am. St. Rep. 207 , 61 Pac. 951 ], Sohler v. Sohler, 135 Cal. 323 [ 87 Am. St. Rep. 98 , 67 Pac. 282 ], and Aldrich v. Barton, supra. In Griffith v. Godey, 113 U. S. 89 [ 28 L. Ed. 934 , 5 Sup. Ct. Rep. 383, see, also, Rose’s U. S. Notes], Mr. Justice Field said: ‘If the property be omitted by mistake, or be subsequently discovered, a court of equity may exercise its jurisdiction in the premises and take such action as justice may require. . . . And a fraudulent concealment of property, or a fraudulent disposition of it, is a general and always existing ground for the interposition of equity. ’ We are aware of the rule that the fraud which will prevail to set aside a judgment or decree must be extrinsic and collateral to the questions examined and determined in the action. (Pico v. Cohn, 91 Cal. 129 [ 25 Am. St. Rep. 159 , 13 L. R. A. 336, 25 Pac. 970 , 27 Pac. 537 ]; Hanley v. Hanley, 114 Cal. 690 [ 46 Pac. 736 ]; Mulcahey v. Dow, 131 Cal. 73 [ 63 Pac. 158 ].) It was said in Pico v. Cohn, 91 Cal. 129 [ 25 Am. St. Rep. 159 , 13 L. R. A. 336, 25 Pac. 970 , 27 Pac. 537 ], that ‘it is settled beyond controversy that a decree will not be vacated merely because it was obtained by forged documents or perjured testimony.’ (See Fealey v. Fealey, 104 Cal. 354 [ 43 Am. St. Rep. 111 , 38 Pac. 49 ].) It would seem to us, however, that the complaint brings to light transactions which were not embraced in the guardian’s account, but are extrinsic and collateral to the matters set forth in it. The case made is quite as strong as the facts presented in the recent ease of Aldrich v. Barton, supra. The theory generally underlying the refusal of equity courts to vacate decrees is, that the complaining party has had his day in court, and that there must be an end of litigation, and that titles would often be thus disturbed and rendered uncertain, and the innocent be made to suffer. Sohler v. Sohler, 135 Cal. 323 [ 87 Am. St. Rep. 98 , 67 Pac. 282 ], is a striking illustration of the flexibility of equity jurisdiction where to do justice to the injured and innocent and pursue the guilty the decree was not disturbed, but the party fraudulently benefited by it was held to be a trustee, and equity laid hold of him as such, leaving the original decree as to others unaffected.” (See, also, Gaver v. Early, 191 Cal. 123 [ 215 Pac. 394 ]; United States v. Throckmorton, 98 U. S. 61 [ 25 L. Ed. 73 , see, also, Rose’s E. S. Notes].)

“ The fact that the personal property was fraudulently withheld from the attention of the probate court and was not administered upon at all in the estate of W. G. Simonton could not have defeated appellants of their estate limited in remainder which vested immediately upon the death of said testator. (Sec. 694, Civ. Code.) The title to the property was not changed in anywise by the fraudulent omission of the executrix to account for it. While the property was included in the estate of Jane Simonton as constituting a part of her estate by her alleged fraudulent acts in violation of her office and trust, and distributed as a part of her estate to respondents, the appellants are not concluded by a decree thus wrongfully procured and equity with its broad and general powers of relief will come to their aid. The equities of this case are well stated in Estate of Walker, 160 Cal. 547 [36 L. R. A. (N. S.) 89, 117 Pac. 510 ], in the following language:

The Estate of Jane Simonton, supra, is cited by respondents as an authority in their favor. That case is not in conflict with any rule announced here. In fact, it expressly recognizes the rule that equity will intervene in cases where property is withheld by an executor from his account fraudulently or by mistake. There was no claim in that case, as here, that the executrix failed to account for the property in question through fraud or mistake. No such showing was attempted or would have been proper in that proceeding.

Counsel for respondents have requested us to express ourselves in advance of the presentation of certain questions of law and fact which they assert are certain to arise during the trial of the cause. This, we think, would be ill-advised, as any intimation from us in advance of the actual presentation of said matters would be premature and without binding force. We think we have-gone as far as it is necessary for us to go in passing upon the merits of a general demurrer.

The judgment of the lower court is reversed, with directions to overrule the demurrer with leave granted to respondents to answer if they so elect.

Lennon, J., Wilbur, C. J., Lawlor, J., Waste, J., and Myers, J., concurred.

Mr. Justice Kerrigan, being disqualified, did not participate in the foregoing.