The following opinion on motion for rehearing was filed October 3,1907. Rehearing denied:
By the Court: In the brief upon the motion for .rehearing one point only is discussed. It is contended that the judgment in the former action in which the probate of the will was contested is a bar to this action. The promise of Mrs. Boggs (now Mrs. Wharton) to carry out certain pur*711poses of the testator did not have the effect to overcome his will and judgment. It therefore was not adjudicated in the former judgment that no such promise was made. Such promise did not constitute undue influence, and the judgment establishing the will, by which it ivas determined that the will was not procured by undue influence, did not determine that no such promise was made. To procure one to make a contract or will by entering into a distinct contract, or by making a distinct promise, is not ground for setting aside the contract or Avill- so induced, but is rather ground for enforcing the promise which induced the making of the contract or will. There was no specific finding-in the contest case that Mrs. Boggs did not make the promises that she is noAV alleged to have made. The general finding that the Avill Avas not procured by undue influence does not negative the existence- of such a, promise, because such promise to accept a trust under the Avill and to provide for the testator’s relatives as he desired can be enforced and did not require that the contest be sustained. The question therefore Avhetlier Mrs. Boggs made such promises as to constitute her a trustee ex maleficio Avas not determined by the former decision in the contest of the will.
The motion for rehearing is
Overruled.