In Re the Estate of Walker

HENSHAW, J.

William Walker died in September, 1906. He was a resident of the county óf Santa Cruz and left real and personal property therein. He was thought to have died intestate. Letters of administration were issued to the public administrator and administration upon the estate was duly had. The decree of final distribution was made and entered in August, 1908. The property was delivered to the distributees, and the administrator was discharged in February, 1909. More than eight months after the decree of distribution, and after the discharge of the administrator, Frank D. Ennor filed an alleged will of the deceased and petitioned for its probate. The distributees contested and in their contest set forth the facts above related. Petitioner demurred to this contest, the demurrer was sustained, the contest overruled and the will after proof ordered admitted to probate.

This appeal is from this order. It is argued that the decree of final distribution is a conclusive adjudication of the i title to the property of the estate which prevents the probate ¡ court from taking any further action in regard thereto. It is further argued that the admission of the purported will of j William Walker to probate is in the nature of a

collateral,

attack upon the decree of distribution and that the decree is immune from such attack. |

Respondent’s position is that neither the order admitting the , will to probate, nor the effect of that order, is in any wise an

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attack, direct or collateral, upon the decree of distribution; that if through accident, fraud, or mistake, the distributees are holding property under the decree, to which they are not entitled, equity will do justice, not by overthrowing the decree of distribution, but by declaring the distributees to be involuntary trustees of the rightful owners of the property. This principle is, of course, well established. (Civ. Code., sec. 2224;

State

v.