Estate of Maxwell

Counsel for the petitioners, excepting to the application for distribution in this estate, claims that the “exceptions” constituting a cause of action or pro *137 eeeding under section 338, Code of Civil Procedure, to obtain relief on the ground of fraud or mistake, and not a proceeding collaterally or directly to assail the probate of the will, are at this time and in this manner cognizable by this court; and he asks this court, while engaged in exercising probate jurisdiction, to declare a trust in Miss Donnelly for the benefit of the Tybout heirs, under section 2224 of the Civil Code, and under the general jurisdiction vested in the superior court by the constitution and codes.

The superior court, sitting in probate matters, has no greater jurisdiction than the probate court which it succeeds: Estate of Hudson, 63 Cal. 454 ; Dean v. Superior Court, 63 Cal. 473 .

It follows that the subject matter of the “exceptions” and petition of the Tybout heirs is not entertainable by this court while it is engaged in the exercise of probate jurisdiction; it does not constitute a cause of action that can here and in the manner presented be tried by the court which can only consider the…