Osborn

Plaintiffs sued to have a trust declared in their favor to certain real property which, as alleged, had been deeded by Silas Hoyt, in fraud of" plaintiffs and in violation of their rights, to said Hoyt’s daughters, defendants Mary E. Hicks and Rachel H. Jolley, charged with full knowledge of the right of plaintiffs and of the fraud. The asserted rights of plaintiffs arose from a written agreement by the terms of which Silas Hoyt promised to make a will giving and devising to plaintiffs all of his right, title, and interest in and to the land in question which he then had or might thereafter acquire. During the trial Silas Hoyt died. A decree was given in favor of plaintiffs to the effect that upon the death of Hoyt plaintiffs became the owners and entitled to the possession of the land and that defendants, Mary E. Hicks and Rachel H. Jolley, hold the land in trust for plaintiffs, and commanding that they execute a proper deed of the property to plaintiffs. Prom the judgment Mrs. Hicks " and her sister and their husbands, who were joined with them as defendants, take this appeal.

A most interesting state of facts is developed from this record. Hoyt was an eccentric man living…

In denying the petition for rehearing we would say that it was not intended either to hold or to imply that there need be an issue raised by the pleadings as to the illegality of the contract sought to be enforced by the action in order that the question of illegality may be considered. (Kreamer v. Earl, 91 Cal. 112 , [ 27 Pac. 735 ].) But in the present case no facts showing the contract to be illegal were either pleaded, shown in evidence, or found.

The application for a rehearing is denied.

All the Justices concurred.