Nicholson

This is an appeal from a judgment entered upon an order of the court sustaining defendants' demurrer interposed to the first and second counts of the fourth amended complaint, filed by the plaintiffs on August 15, 1911; and from a judgment of nonsuit upon a trial had as to the cause of action stated in the third count thereof. This third count of the complaint stated in the usual form a cause of action for the quieting of plaintiffs' title to certain real estate. The averments therein being denied by defendants' answer, a trial was had and evidence introduced by plaintiffs, at the close of which the court granted defendants' motion for a nonsuit upon the ground that plaintiffs had failed to prove the allegations of their complaint. The evidence so introduced and upon which the court acted is not brought up in the transcript; hence there is no record presented *Page 599 upon which it can be said the ruling was error. For this reason the judgment of nonsuit upon the third cause of action in the complaint set forth must be affirmed. As appears from the complaint, the second count thereof is equitable in its nature and purports to state a cause of action upon which plaintiffs ask the…

The application for a hearing in this court after decision by the district court of appeal of the second district is denied. In denying such application we deem it proper to say that in so far as anything said in the opinion may be supposed to imply that a fiduciary relation on the part of those securing the probate of a will is essential to the making of a sufficient case of extrinsic fraud to sustain an action for a decree in equity charging the executor, legatee, or devisee with a trust in favor of the defrauded party (see Bacon v. Bacon, 150 Cal. 481 , [ 89 P. 317 ]; Sohler v. Sohler, 135 Cal. 323 , [ 87 Am. St. Rep. 98 , 67 P. 282 ]), it is not in accord with our view of the law. No such distinction is warranted by the authorities. Such a doctrine is not at all *Page 609 essential to the conclusion reached by the district court of appeal, and the opinion filed sufficiently disposes of the case without reference to any such doctrine, and on the theory that the parties must be deemed to have had notice of the proceedings in time to have enabled them to assail the will, and that they did not use due diligence in regard thereto. It may be that no such implication as suggested was…