Goldtree

This action was brought by the trustees, under the will of Jonathan Thompson, deceased, against his heirs at law and the legatees under the will, for the purpose of having the terms of that instrument construed, so that the trustees would be free from doubt as to what their duties were with reference to the trusts confided to them. The court below made its decree determining the method in which the trustees should act in obedience to the trusts contained in the will from which this appeal is prosecuted.

We think the cause should be considered upon appeal, notwithstanding the effort made to dismiss it. The complaint, which seeks to have the trusts contained in the will construed by the court, shows by the averments that, after the trustees had qualified as executors of the will, they entered upon the discharge of their duties as such, “and managed the property *62 of the said deceased in the state of California, paid all the debts of said deceased, and, after due proceedings had in the said estate, all the property thereof was by an order of said probate court, duly made and given on March 13, 1877, distributed to said Patchett, Thompson, and Grierson, as trustees under the said…

I desire in brief to explain my dissent. The trustees under the will of the testator in this *63 case (plaintiffs herein), under a well-known head of equity-jurisdiction, ask the advice of a court of equity as to the construction of trusts in the will. The property had been distributed by the proper court, under the will, to the plaintiffs as trustees; and it is held in the prevailing opinion that the will is superseded by the decree. How this supersedure is brought about I cannot conceive. The court distributing the property had nothing to do with the construction of the trusts under the will. The question was not before it at all. That court had only to determine in whom the law vested the property under the will. As to what was the meaning or signification of the language declaring the trusts under the will, that court had nothing to say or do. There was no merger in a decree or judgment. Such merger cannot go beyond the matter in issue. If the point or question is not a matter in issue— that is, to be determined in the action by the court in which the suit is pending, and declared by its judgment—the judgment of the court on such point or matter determines nothing which can…