McDaniel

concurred in the foregoing opinion of the Chief Justice.

The following are the opinions above referred to rendered in Department One on the 16th of September, 1891: —

Plaintiffs are the daughter and children of another daughter of A. M. Pattison, deceased, and the defendants are the widow and son of said deceased.

This was an action to cancel and annul certain deeds, to wit:

Among other matters the complaint alleges: “That A. M. Pattison died April 5, 1885, a resident of Los Angeles County, California, and plaintiffs and defendants are his heirs-at-law; that upon the 4th of March, 1885, said Pattison was seized in fee of valuable real estate in Los Angeles City and in Carthage, Missouri; that on the fifth day of September, 1884, said Pattison made a will, by which all of his property was left to his widow for life, and after her death to pass in three equal shares, one to plaintiff McDaniel, one to plaintiffs, the children of a de *95 ceased daughter, and the third to defendant, J. H. W. Pattison; that said will was his last will and testament, was unrevoked at the time of his death, and has not been probated, but was fraudulently destroyed or suppressed by defendant, J. H. W.…

We are satisfied, with opinions filed and the conclusion reached by Department One when this case was before it for decision, and the judgment is therefore reversed.

In their petition for a rehearing respondents, claim that they are entitled to assert their rights as heirs, but it is evident from the pleadings, findings, and decree that the parties and the court below ¡proceeded upon the theory that plaintiffs were claiming as devisees and not as heirs. The decree therefore cannot be modified, but we think there is enough in the complaint to justify an order allowing the plaintiffs to amend their complaint? if they desire so to do, so as to assert any claim they may have by reason of their heirship.

The judgment and order are reversed, and the cause is remanded with directions to allow the parties to amend their pleadings, if they be so advised.

Garoutte, J., McFarland, J., Paterson, J., Harrison, J.

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…