de Auguisola v. de Arnaz

The title to all the real estate in controversy was in Merced Avila de Arnaz, the testatrix, at the time of her death, and by her last will and testament she devised and bequeathed all her property to her children in equal shares'. The will of the testatrix has been admitted to probate; letters testamentary have issued to the husband of the testatrix, and the estate remains unsettled in the probate court. So far as the real estate is concerned, there was no ground upon which an action in the district court to declare a trust could be maintained, for the title to the same had already vested in those plaintiffs and defendants who are the children of the testatrix, by virtue of the will. The personal property belonging to the estate of the testatrix, whether it be such as the testatrix owned at the time of her death, or is the proceeds of other property of the estate sold by the executor, is subject to the control of the Probate Court, except so far as it may have been exempted therefrom, by the provisions of the will; and the court has competent authority to make all necessary orders to compel an account of such j>roperty, and to cause a distribution to be made among those entitled…