The opinion
SCHAUER, J.,
Concurring and Dissenting.—I concur in the judgment, and am in general accord with the opinion of Mr. Justice Carter except insofar as it holds that plaintiff’s first amended complaint in its present form states a cause of action for extrinsic fraud. In my view, even the most liberal construction of the allegations relating to fraud which appear in plaintiff’s first amended complaint does not render those allegations sufficient to state a cause of action based on extrinsic fraud.
The first amended complaint alleges, in material part, as follows: “Plaintiff is informed and believes and therefore alleges that said Berdella Marie McMinn on or about the 15th day of October, 1951, fraudulently procured a decree purportedly assigning the whole estate of Thomas J. Simmonds deceased, to the surviving widow, the defendant Anna Sim-monds; that in order to obtain said decree said defendant Berdella Marie McMinn fraudulently and with intent to deceive said Court and to obtain a greater interest in the real property hereinabove described, represented to the Court that notice had been given in all respects as required by Section 1200 of the Probate Code during which time said defendant well knew that notice had hot been given to plaintiff pursuant to her request as hereinabove alleged. Said defendant further fraudulently and with intent to deceive the said Court represented that the value of said estate did not exceed $2,500 at the time of decedent’s death; that defendant Anna Simmonds, the widow of said decedent, did not possess other estate in excess of $5,000 in value; and that the entire estate, including the real property hereinabove described, consisted of community property; that at the time of making said fraudu *99 lent representations, defendant well knew that said real property was not community property but the separate property of the decedent, and defendant Anna Simmonds possessed property having a value in excess of $7,500.”
The extrinsic fraud complained of is the alleged failure of the administratrix McMinn to notify plaintiff of the pending proceeding to set aside the entire estate of the decedent to his surviving widow. Any fraud in the representations of the administratrix as to the value and character of the property involved is intrinsic, and does not affect the alleged denial to plaintiff of her day in court. (See Stiebel v. Roberts (1941), 42 Cal.App.2d 434, 438-439 [3] [ 109 P.2d 22 ].) Thus only the first sentence of the above quoted allegation is pertinent to the inquiry of whether the complaint states a cause of action grounded on extrinsic fraud.
The first segment of the allegation under consideration states on information and belief the general proposition that the decree assigning the entire estate to the surviving widow was fraudulently procured. The remaining clauses of that sentence purport to state the manner in which such fraud was practiced, viz., by a representation by defendant McMinn to the court that the required statutory notice had heen given, at a time when McMinn knew that such notice had in fact not been given. If plaintiff knew positively the facts which constituted the alleged fraud, then there would he no need to allege on information and belief that such fraud had been committed; conversely, if plaintiff alleges on information and belief that fraud has been perpetrated, then it must follow that succeeding allegations as to the basis of the fraud are also made on information and belief. While it is true that the mere fact that a paragraph of a complaint commences with an allegation on information and belief does not necessarily require the conclusion that the entire paragraph is so based, in the sentence here under consideration an interpretation that the information and belief basis applies only to the first clause of the sentence and not to the succeeding amplifying clauses is neither reasonable nor proper. Certainly if the pleader were on trial for perjury in her averments—and the manifest objective of requiring verified pleadings is the truthful definition of the real issues of fact on pain of perjury—all of the quoted allegations would be construed to be only on information and belief.
It is not questioned that the acts attributed to the adminis-tratrix on the information and belief basis, if proven, would *100 constitute extrinsic fraud which could properly form the basis for granting relief to plaintiff. But the complaint in its present form fails to present the issue of extrinsic fraud to the trier of fact. “[I]t is not sufficient to allege fraud or its elements upon information and belief, unless the facts upon which the belief is founded are stated in the pleading.” (Dowling v. Spring Valley Water Co. (1917), 174 Cal. 218, 221 [ 162 P. 894 ]; Findley v. Garrett (1952), 109 Cal.App.2d 166, 176-177 [3] [ 240 P.2d 421 ].) No facts are stated in the present complaint on which a belief might properly be based that the administratrix knew that the required notice had not been given at the time when she represented that it had been given. While it is true that “there must be cases in which the knowledge of the fraud by its perpetrator must be charged on information and belief, . . . [still] in such cases there must be allegations of facts which show positively or by reasonable inference that such knowledge must have been possessed by the person accused of the fraud.” (Dowling v. Spring Valley Water Co. (1917), supra, 174 Cal. 218, 221 ; italics added.) The allegations relative to extrinsic fraud in their present form without more cannot be considered sufficient allegations of the charges made. (Mason v. San-Val Oil & Water Co., Ltd. (1934), 1 Cal.2d 670, 672 [2] [ 36 P.2d 616 ].)
From the foregoing discussion it seems clear that the trial court was justified in holding that the complaint here did not state a cause of action. However, since, conceivably, plaintiff could have alleged facts constituting a basis of information and belief on which the conclusional fact of fraud could rest, or could have stated the allegations of fraud in positive terms, 1 leave to amend the complaint should have been granted.
The petition of defendants and appellants for a rehearing was denied October 17, 1957.
In the order of the trial court granting the motion for new trial, plaintiff was also granted permission to file an amended complaint. In this amended complaint the allegations as to fraud are stated positively.