Caldwell

This is a suit in equity by Oscar P. Caldwell, only son of the deceased, Perry Moore Caldwell, seeking to have the defendant, a beneficiary named in the will as Leonore Fisher Caldwell, declared an involuntary trustee of the property devised to her upon the ground that the will was procured by her fraud and undue influence. The Bank of America Trust and Savings Association (successor in interest to the Bank of Italy National Trust and Savings Association) is likewise sought to be charged as constructive trustee in its capacity as executor under the will of Perry Moore Caldwell.

The plaintiff seeks the aid of equity in this independent suit upon the ground that the probate of the will was procured by the fraud of the defendant Taylor in that, by concealment of the facts, she prevented the plaintiff from making a timely contest of the will. The legal questions relevant to the claim of fraud which prevented the contest of the will were passed upon by this court upon appeal from an order sustaining demurrers to the complaint and it was held that a case had been alleged sufficient for the interposition of equity. (Caldwell v. Taylor, 218 Cal. 471 [ 23 Pac. (2d) 758 , 88 A. L. R.…