Tracy

— This is a companion case to Larrabee v. Tracy, L. A. 18084, ante, p. 645 [ 134 P.2d 265 ] but questions have been raised herein that have not been determined by that decision. On August 7, 1930, Mark H. Rice created a trust of certain real property, naming the plaintiff bank as trustee. The trust agreement provided that the trust was to terminate upon the death of the trustor, the property to be transferred according to the terms of his will. Rice died on August 6, 1931, and appellant Wellman, the residuary legatee, qualified as executor. The trustee, believing that the estate would be promptly closed, and with the consent of all the beneficiaries, allowed Wellman to possess and manage the real property. Thereafter the trustee repeatedly urged that Wellman close the estate, but Wellman failed to do so. In October, 1937, Wellman obtained an order from the probate court that he, as residuary legatee, was entitled to the one-sixth interest in the estate devised and bequeathed to Kate Chase, who had died before the will was executed. In May, 1938, the trustee brought this action for declaratory relief and for instructions, stating that a controversy had arisen as to the share left…