The plea of res judicata should not prevail. Jurisdiction of the probate court goes only to a determination of whether there was, or was not, a will.
Whether a trust ex maleficio arises is a question of equitable cognizance, not within probate jurisdiction. Therefore, it is not an issue previously submitted to a tribunal having power of disposal.
In the instant case it is merely a circumstance that the trust interests contended for are equal in value to the estate the heirs would have taken had their uncle died intestate. But suppose the trust had directed payment *Page 469 of one-half to A, one-fourth to B, and distribution of the remaining one-fourth to C and D in equal parts; admittedly such claims could not be tried in probate court. Conceivably, under such facts, beneficiaries receiving the larger shares might be interested in establishing the will, for its non-establishment would automatically put them on a parity with other heirs of the same class taking by inheritance. Carter v. Younger112 Ark. 483, 166 S.W. 547.
If the probate court was without jurisdiction, the circuit court acquired none on appeal. Skeif's Heirs v. Bohall, 99 Ark. 339, 138 S.W. 461; Fowler v. Frazier,116 Ark. 350, 172 S.W. 875.
The circuit court, on appeal, can render only such judgment as the probate court might have rendered.
After appeal from the order admitting the will to probate had been perfected, allegations by the interveners were: "Said will was void and of no effect for the reason that the said Jack F. Lyon was fraudulently and unduly influenced to execute such will by the beneficiary therein named. Prior to the execution of said will the deceased, Jack F. Lyon, had expressed the intent on numerous occasions that the petitioners herein should share equally with the said William A. Lyon in his estate. During the summer of 1931 the said decedent made a trip to Europe with William A. Lyon and subsequent to that time spent many months in the company of William A. Lyon, and during said time the said William A. Lyon prevailed upon the decedent, fraudulently to leave the entire settlement of his estate in the hands of said William A. Lyon, and William A. Lyon had fraudulently deceived the said decedent by assuring him that he would distribute his estate in the manner in which he wished. That the decedent intended that said William A. Lyon should divide his estate among his various nieces and nephews, and by fraud and artifice the said William A. Lyon caused the decedent to believe that by executing his will so as to leave the entire estate to said William A. Lyon his wishes would be carried out in the fullest extent. Wherefore, interveners pray that the said alleged *Page 470 will of Jack F. Lyon be declared void and of no effect, and that this court order the estate of said Jack F. Lyon to be distributed according to the laws of Arkansas to his heirs at law."
The first allegation of the intervention, and the prayer, are inconsistent with the express declaration that . . . "the decedent intended that William A. Lyon should divide his estate among his various nieces and nephews." The only method by which this intent could have been effectuated was to convey the property to the party charged with the duty of distribution.
When the pleading is read in its entirety it will be seen that the fraud alleged is not that William A. Lyon prevailed upon his uncle to make the will, but that he failed to carry into effect the claimed attributes of trust. There was legal execution of the will, but the intent of William A. Lyon at the time influence was exercised, or his subsequent purpose to disregard the trust, is the scienter of the pleading.
It may be urged that there was an election of remedies. This would be true if the natural construction to be given the intervention revealed it as an allegation that the testator did not intend to execute the will; and further, if the probate court had possessed trust — creating jurisdiction. But neither conclusion is tenable, and we should regard the prayer for avoidance as one in effect asking that . . . "the court order the estate distributed according to the laws of Arkansas to the heirs of Jack F. Lyon; subject, however, to the express allegation that the will was executed by said Jack F. Lyon for the purpose of placing his property in the hands of William A. Lyon in trust."
Certainly the laws of this state, assuming the allegations could be sustained, would engraft a trust upon the will; and the distribution asked for thereunder is the same distribution the law requires.
In the view herein expressed, the intervention should have been regarded as an alternative plea, and the chancery court erred in holding that the former judgment *Page 471 was res judicata. Mr. Justice HUMPHREYS concurs in this dissent.