Moore

Action concerning an escrow agreement involving an interest in real estate and in the proceeds of sales under said agreement. The facts had better be stated chronologically.

In December, 1893, Agnes B. Oglesby died testate in the city of Santa Barbara. She left a large estate, a part of which was block 70% of land in the city of Santa Barbara. She had five children, three daughters and two sons. To each of the three daughters she gave an undivided one-fifth interest in and to said block, of land and the other two-fifths she willed to two of her daughters in trust for her two sons, D. F. Oglesby and A. A. Oglesby. The names of the trustees were Belle 0. Franklin, a defendant, and Frances W. Oglesby, since deceased. Each of the sons was to have an undivided one-fifth interest in the residue of said estate, which included said block. The terms of the trust are not stated, and the will is not brought up in the record. The block was distributed “in accordance with the ninth paragraph of said will” in September, 1895.

Just before the mother’s death she called the two trustees, her daughters, to her and told them that she was going to dispose of her property by deeds instead of by will…