I dissent. I quite agree that a court of equity may, in the cases supposed in the majority opinion, give relief by declaring the distributees to be trustees for the rightful owners of the property. But I do not see that the probate of the will is a necessary, or even a proper prerequisite to the granting of such relief.
The judgment of the probate court is final with respect to the question of testacy or intestacy as well as with respect to the succession to the decedent's property. An action in equity to charge the distributees as trustees does not question the validity of the decree of distribution. It recognizes that decree as adjudicating that the legal title has passed to certain persons, but impresses such title with a trust. As the majority opinion itself points out, this is not an attack upon the finality. of the proceedings in probate. The right to have a trust declared depends upon the very fact that the probate court has, as the result of some fraud or mistake, conclusively adjudicated the title to be in some one other than the true owner. It is not claimed by any one that the decree of distribution should or can be set aside or supplanted before equity can give relief. Why then is it necessary as a preliminary to such equitable suit to have the will proved in probate? The court has in this very proceeding adjudged that the decedent died intestate. It cannot, after such judgment has become final, again take jurisdiction of the same question and decide it the other way. If the case of McDaniel v. Pattison, 98 Cal. 96, [27 P. 651, 32 P. 805], decides anything in conflict with these views I think it should not be followed.
Angellotti, J., concurred.