The petition for rehearing is denied.
In view of the argument and the possible misconception of the effect of our opinion, we deem it proper to add *Page 353 some further remarks. [2] By section 1699 of the Code of Civil Procedure the superior court, sitting in probate upon the distribution of an estate wherein the will creates a trust, retains jurisdiction of the estate for the purpose of the settlement of the accounts under the trust. It follows from this that in this particular case the Superior court of San Francisco has had jurisdiction of the estate for the purpose of settling the trustees' accounts ever since the decree of distribution of the estate of John Nuttall, deceased, was made, more than twenty-five years ago. That jurisdiction remains until the accounts are closed and the trustee discharged. [3] It is also true that the superior court of each county in the state has general jurisdiction in equity to settle trustees' accounts and to entertain actions for injunctions. This jurisdiction is, in a sense, concurrent with that of the superior court, which, by virtue of the decree of distribution, has jurisdiction of a trust created by will. The latter, however, is the primary jurisdiction, and if a bill in equity is filed in any other superior court for the purpose of settling the account of such trustee, that court, upon being informed of the jurisdiction of the court in probate and that an account is to be or has been filed therein for settlement, should postpone the proceeding in its own case and allow the account to be settled by the court having primary jurisdiction thereof. We assume, of course, that the proposition to settle the account in the court in probate is made in good faith and will be prosecuted with diligence. Some discretion is vested in the court on this point, and if it appears that the suggestion of the primary jurisdiction of the court in probate is made for delay or in bad faith, we have no doubt that the other superior court might properly proceed to judgment on the bill in equity. The court entertaining the bill in equity is not without jurisdiction. [4] If no suggestion of the primary jurisdiction of the court in probate is made to it, the judgment of such court in the suit in equity will undoubtedly be valid, and upon any subsequent proceeding in the court in probate under its jurisdiction such judgment would be binding upon that court.
Shaw, J., Olney, J., Wilbur, J., Lennon, J., and Lawlor, J., concurred. *Page 354