Vandepeer

The last will and testament of Fannie Simpson appointed the defendants herein as its executors, and contained among other provisions the following:

The testatrix died December 26, 1891, and on January 11, 1892, her will was admitted to probate by the superior court of Alameda county, and on the same day letters testamentary thereon were issued to the defendants. Thereafter such proceedings were had that on January 16, 1893, the superior court settled the final account of the executors, and made its decree of distribution of said estate, in and by which it distributed to the defendants herein the sum of $2,000 in trust (setting forth the provisions of the trust as stated in the will), and distributed to the plaintiff herein all the remainder of the estate of said decedent, which was described in said decree as “all the rest of said estate, whether herein described or not.” The $2,000 thus distributed to the defendants was received by them February 20, 1893, and, with the exception of so much thereof as has been expended in the care of said burial plot, they still have the same in their possession, together with its accumulations. March 2, 1904, the plaintiff brought the present…