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 *62of 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 will,” etc. It does not appear from the complaint, however, what the terms of that decree were with reference to the disposition of the trust estate, except that it was distributed to the trustees. What the purport of the order of the court was as to carrying out the trusts contained in the will is not stated. The order or decree of final distribution, having been “duly made and given,” was binding upon the parties in interest here, subject only to be reversed, set aside, or modified on appeal: Code Civ. Proc., sec. 1666; Estate of Garraud, 36 Cal. 279; Estate of Hudson, 63 Cal. 457; In re Rowland, 74 Cal. 525, 5 Am. St. Rep. 464, 16 Pac. 315. No appeal in the matter appears to have been taken. This being so, it is manifest that the rights of the parties must be governed by the decree. In other words, the will is superseded by the decree. It is therefore immaterial to consider what is the proper construction of the will. The only thing upon which the trustees have a right to the opinion of the court is as to their duties under the decree; and the suit is in effect to obtain a construction of the decree. But the record does not show what the decree was, and therefore the court is practically asked to construe a document which is not before it. It cannot undertake to do that; and it results that the complaint does not state facts sufficient to constitute a cause of action. If the fact be that the will was made a part of the decree, that fact should be made to appear, and the whole of the decree should be given. We therefore advise that the judgment be reversed, and the cause remanded, with permission to file an amended complaint.
We concur: Belcher, C. C.; Hayne, C.
PER CURIAM.For the reasons given in the foregoing opinion the judgment is reversed, and cause remanded, with permission to file an amended complaint.