O'Donnell v. Murphy

Citations

• 17 Cal. App. 634

Syllabus

<p>Estates of Deceased Persons—Decree of Partial Distribution Under Will—Contest by Heirs—Appeal—Mistaken Remedy— Trust.—Where a decree of partial distribution was made according to the terms of a will, and was contested upon petition of the heirs on the alleged ground that the will was void as imposing a secret invalid trust for the heirs, who have appealed from such decree, it is held that the appellants have mistaken their remedy, which is not in the probate court, by opposition to the bequest under the will, but solely by an independent action in equity to enforce the trust, if it exists, and that the decree of partial distribution appealed from must be affirmed.</p> <p>Id.—Trust not Appearing upon Face of Will.—Where no trust or invalidity appears upon the face of the will, it must be given effect in the probate court according to its terms.</p> <p>Id.—Resort to Independent Suit in Equity—Trust not Enforced— Affirmance of Will.—Where an independent suit in equity was resorted to and the decree of the court of equity adjudging the nonexistence of any secret or invalid trust which could be enforced in favor of the heirs has been affirmed upon appeal, such affirmance is res adjudieata as to the very matter it was sought to litigate in this proceeding, and it is manifest that a reversal of the decree of distribution appealed from could be of no avail to the appellants.</p>