I concur in the conclusion of Mr. Justice Richards, and particularly in that portion of the opinion holding that the defendant was at the time of the death of her husband a trustee of plaintiffs, and that she now holds the property of the estate in trust. I am inclined to hold to the opinion that all the personal property of the estate was never administered upon. The executrix of the estate was interested in the property of the estate. She chose to present to the court for administration one piece of property only. In her final account and petition for distribution she stated and under oath verified: "The entire estate of said deceased now in the hands of said executrix consists of the following" (then follows a description of the piece of real estate, the only property inventoried and the only property mentioned anywhere in any of the proceedings of the estate). And in this same final account and petition she alleges and verifies: "That the only property belonging to said deceased at the time of his death was *Page 180 the home place, being community property [and again describing the six thousand five hundred dollar piece of realty, the only property mentioned in the estate], . . . and all said property belonging to said estate shall be distributed to her" — the defendant. Again, in the same final account and petition she stated under oath that there are "no moneys or funds or personal property belonging to said deceased"; "that the estate to be distributed consists of" (again describing the beforementioned lot of real estate).
The decree of distribution ordered, adjudged, and decreed "That said Lizzie Asher, as such executrix, has in her possession belonging to said estate . . . a balance of six thousand five hundred dollars, which consists of the real property hereinafter described . . . and that by operation of law and in pursuance of and according to the provisions of the last will and testament of said deceased, the aforesaid balance of real estate hereinafter described and all other property belonging to said estate, whether described herein or not, is distributed as follows." The defendant is named as the sole distributee, and the property specifically described is the same property inventoried and none other. In reference to the personal property of a value of more than one hundred thousand dollars the plaintiffs, in paragraph XIII of their fourth amended complaint, seem to seek to have this property impressed with a trust independent of the administration of said estate. The paragraph reads as follows:
"Plaintiffs are informed and believe and upon such information and belief aver the truth to be that all of the said property mentioned in paragraph VI hereof is now, and ever since the death of George M. Asher has been in the hands of defendant Lizzie Asher, and this is the same property that was owned, possessed and controlled by George M. Asher as his sole and separate property at the date of his death, and that the same was never scheduled or accounted for in any way as the property of said decedent, and said Lizzie Asher now holds said property as trustee for the benefit of plaintiffs to the extent of said above-mentioned legacies, payable to each of them, and that the total value of said property so held by defendant Lizzie Asher, as before stated, is in excess of the sum of one hundred thousand dollars." *Page 181
Under the caption "The complaint does not state a cause of action also because it does not show injury to the appellants" the respondent argues that inasmuch as the court found that "the property of said estate to be community property," the plaintiffs are not injured even if defendant did deceive the court and defraud or attempt to defraud the plaintiffs by withholding the main body of the estate from specific administration. They reason that since plaintiffs were to receive their legacies from an excess over eighty thousand dollars and not otherwise, the allegations of the complaint show that the whole value of the estate was about one hundred thousand dollars, and the court having found that the property of the estate was community property, it would leave only about fifty thousand dollars in value subject to testamentary disposition.
The portion of the decree above quoted is found in the recitals of the decree. Even if we consider such recital as an adjudication of the fact, such a judgment applies to the specific property before the court. The trial court in all of its adjudications in the matter of this estate had but one piece of property before it, and it was passing judgment on that one piece alone. It may well be that the home place was community property and all other property not administered upon was separate property. To hold that all of the property belonging to the deceased in this case under the allegations of the pleadings of plaintiffs was distributed to defendant under the general clause of the decree would certainly be placing a high premium upon fraud. For the express purpose of defrauding the legatees named in her husband's will she withheld the property from administration. She intended the court to believe, and the court did believe, that there was no other property than the lot of real estate hereinbefore mentioned. The court on the face of the decree, where it found that said property was "the property of said estate . . . so far as the same is known," was dealing with and passing judgment upon that piece and that piece alone. Section 1698 of the Code of Civil Procedure implies that administration of a part of an estate, such as disclosed here, is not exclusive and complete. The property not administered upon and which by the majority opinion is held in trust for the appellants may be considered as property discovered after final settlement, and therefore *Page 182 subject to be administered upon under a subsequent issue of letters testamentary.
A petition for a rehearing of this cause was denied by the district court of appeal on October 1, 1920, and a petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on October 28, 1920, and the following opinion then rendered thereon:
THE COURT. — In denying the petition for rehearing there is one point not touched upon in the opinion of the district court of appeal, of which we would speak. The defendant as executrix of her husband's will held the property of the estate in a trust capacity for those finally entitled to it. That property she was required to account for in that trust capacity. To such accounting, to its settlement, and to the reopening of the account after settlement in order to charge her with additional property not accounted for by her, the principles apply which are applicable in the case of accounts of trustees in general. These are the principles applicable in the present case. The respondent, however, if not the appellants as well, treats the case as one of reopening a decree of distribution. It may be that in one sense, but the decree of distribution under the will in the present case was dependent upon and was determined by the amount of property for which the defendant was held accountable upon the final settlement of her accounts as executrix. The present action is, therefore, really one to reopen the settlement of the defendant's account and charge her with property which she is alleged to have fraudulently failed to return. The reopening of the decree of distribution is but an incident of the reopening of the account by which the decree of distribution was determined. The principles applicable are, therefore, as we have said, those applicable to the reopening of the account of a trustee after final judicial settlement.
[2] Applying those principles, the complaint in the present case is defective in a particular not noticed apparently by counsel. It does not allege that the plaintiffs at the time of the settlement of the defendant's account were unaware of the existence as a part of the testator's estate *Page 183 of the property with which they now seek to charge the defendant. The defendant's application for the settlement of her account directly put in issue as between herself and the beneficiaries for whom she was acting, among whom were the plaintiffs, the question as to what property was properly chargeable against her, and the question was concluded by the settlement of the accounts so far as the plaintiffs had information upon which they could make the issue. This last statement is subject to the qualification, of course, that the plaintiffs were not fraudulently prevented in some manner from raising the issue, but this element does not seem to be present in the case at bar. The case is one in which the beneficiaries of a trust merely refrain from taking any part in the settlement of the trustee's account. Their so absenting themselves cannot affect the conclusive nature of the settlement of the account as to any issue involved which they might have raised and contested if present. But, on the other hand, whether present and participating in the settlement or not, the settlement is not conclusive against a charge of fraud upon an issue which the plaintiffs could not have raised. Such fraud is "extrinsic" to the proceeding. There is, as we have said, no allegation in the present complaint that the plaintiffs were unaware of the property in question as a part of the testator's estate, and in the absence of such an allegation there is nothing to show that the plaintiffs were not in a position to present the claim that it was such property.
While the complaint was open to demurrer in the particular mentioned, yet it is a particular to which attention was not called either in this court or in the district court. It would not be just under the circumstances that the judgment on demurrer be sustained without the plaintiffs having an opportunity to amend the complaint if they can do so by averment in accordance with the fact. We therefore concur in the order of reversal by the district court of appeal.
Shaw, J., Lawlor, J., Olney, J., and Sloane, J., concurred. *Page 184