(concurring in part and dissenting in *947part) — I am in full agreement with the majority when, under the facts of this case, it holds that the failure of the administrator to properly ascertain and notify plaintiffs of the probate proceedings subjects the administrator and his surety to liability for the loss of inheritance occasioned plaintiffs.
I do not, however, agree that the facts here presented warrant the imposition of a constructive trust upon the proceeds of the probate proceeding delivered to Gunda and Harold Harby in 1962.
The evidence fully supports the trial court’s finding that Gunda and Harold did not act fraudulently or with intent to deceive in innocently failing to disclose plaintiffs’ existence as potential heirs of Maja’s estate.
The testimony establishes, without dispute, that following Maja’s death, they were the two surviving members of an originally substantial number of brothers and sisters, four of whom — Harold, Gunda, Maja, and Bertha Warming — only had come to and lived in the United States for many years.
When Gunda was casually asked who Maja’s surviving heirs might be, she replied in effect that she and Harold were the only members of the family left. She was not advised what the term “heirs” included, nor was she queried in any way by anyone as to whether there existed any surviving children of any deceased siblings, although the administrator and his attorney could not help but know that Bertha Warming had at one time a daughter in Norway and that Maja’s remains were sent there for interment. Neither was Gunda advised that if any such surviving children did exist they would be entitled to share in Maja’s estate. Her reaction and response to the cursory inquiry following Maja’s death was a perfectly natural and normal one for a person of her age, family history, and circumstances. And, she had every right to assume that Mr. Blomberg and his attorney, who had acted in a representative capacity in the settlement of Mrs. Warming’s affairs, were either familiar with the family situation or would *948appropriately familiarize themselves with it to the extent necessary to properly and lawfully settle Maja’s estate. Furthermore, she promptly 'advised plaintiffs of Maja’s demise, and with the knowledge and aid of the administrator shipped her remains to the family home in Norway. Under these circumstances her nondisclosure to the administrator or his counsel could hardly be characterized as anything other than innocent.
The same applies to Harold Harby. He resided in California and was first 'advised of Maja’s death by Gunda and the administrator’s attorney after the funeral, cremation, and disposition of her remains. At the same time he was advised by mail that he and Gunda would share in her estate. Thereafter, and before distribution, he was not queried in any fashion concerning disposition of the estate. He, like Gunda, had every right to assume that the familiarity of Mr. Blomberg and his counsel with the affairs of Mrs. Warming, Maja, and Gunda would lead to a proper disbursal of the estate under the laws of descent and distribution prevailing in the state of Washington. Against this background, his silence as to plaintiffs’ existence does not deserve to be characterized as fraudulent.
Although fraud, misrepresentation, bad faith, concealment or overreaching usually form the basis upon which a constructive trust is erected and a judgment based thereupon is imposed, it is, as noted by the majority, recognized that when a property interest has been acquired by a party under such circumstances as to impose upon that party an equitable duty to convey it to another, and to permit him to retain it would result in an unjust enrichment, then the conscience of equity steps in and provides a remedy. Beatty v. Guggenheim, Exploration Co., 225 N.Y. 380, 122 N.E. 378 (1919).
Although it cannot be denied that Gunda and Harold Harby will be enriched by retention of the plaintiffs’ share of Maja’s estate, I do not conceive that it can categorically be said that they would be unjustly enriched to the extent that they should, at this late date, become subject to the lien of a personal money judgment against *949them and be forced to litigate further the liability of the administrator and his surety.
Maja’s estate consisted entirely of liquid assets — cash and some shares of corporate stock — which were distributed equally, value-wise, to Gunda and Harold. This distribution occurred in 1962. They received their respective shares pursuant to a court order which they were entitled to believe was validly entered at the behest of and under the auspices of the administrator and his attorney, upon whose skill and judgment they were fully entitled to rely, and who were adequately compensated for their services. As the trial court found, and as would seem inevitable under the circumstances, the distributed shares, to a large extent, have become indistinguishably commingled with their personal assets and, as the majority point out, it is entirely possible that the passage of time, the cost of living, and the erosion of inflation have tended to substantially diminish the values initially received. Furthermore, the plaintiffs have in essence been granted their relief against the administrator and his surety and nothing of significance to them is to be gained by a joint and several judgment against Gunda and Harold.
All factors considered, I am not of the view that the conscience of equity would be so shocked as to compel the imposition of a .constructive trust or a judgment lien upon the estates of these particular parties.
Equitably speaking, then, I would vacate the judgment against Gunda and Harold Harby 'and dismiss plaintiffs’ action as to them. Alternatively, if judgment for the amounts involved must, legalistically, be entered against them, I would grant them judgment over against the administrator and his surety.
Neill, J., and Donworth, J. Pro Tern., concur with Hamilton, C.J.