Monk

This is an appeal from a judgment in favor of the plaintiffs in an action brought by them against the defendants to impress a trust in plaintiffs’ favor upon certain property which had been distributed to the defendants by a decree of distribution in the Matter of the Estate of Henrietta M. Cox, Deceased, the basis of said action being certain alleged fraudulent acts and conduct on the part of said defendants during the course of probate of said estate.

The averments of the plaintiffs’ complaint in that regard may be summarized as follows: Henrietta M. Cox died intestate on April 3, 1915, at Long Beach, California, where she had resided for a number of years, leaving an estate consisting of real and personal property and having for her sole surviving heirs her first cousins, the plaintiffs and defendants in this action. The defendants at the time of the death of said Henrietta M. Cox were living in California and at or near the place of her decease. The plaintiffs then and for many years prior thereto lived at several places in or near the city of Brooklyn, state of New York. Shortly after the death of Henrietta M. Cox the defendant, George Morgan, filed a petition for letters of…

I concur. The defendant Morgan, as administrator of the estate of Henrietta M. Cox, deceased, occupied a trust relation toward the plaintiffs, who were entitled to share in the estate. (Robins v. Hope, 57 Cal. 497 .) Other than the plaintiffs, he and his sister, the defendant Louisa Arnold, were entitled to distribution to themselves of the whole of the estate. That was -what they were seeking. Whatever they could withhold from the plaintiffs was so much gained to them. The action of Morgan, fully described in the majority opinion, was a device intended to prevent the plaintiffs from submitting their claims to the probate court for determination. It was extrinsic fraud which entitled the plaintiffs to the intervention of a court of equity to set aside the decree, or, as is being sought here, to impress the property with a trust in plaintiffs’ favor. (Bacon v. Bacon, 150 Cal. 483, 489 , [ 89 Pac. 317 ].)

A petition for a rehearing of this cause was denied by' the district court of appeal on October 1, 1920, and a petition to have the cause heard in the supreme court,' after judgment in the district court of appeal, was denied by the supreme court on October 28, 1920.

All the…