Goldtree v. Allison

TEMPLE, J. This is a creditor’s hill, in which it is sought to subject certain property to the satisfaction of plaintiff’s execution against John Thompson. A general demurrer to the complaint was sustained, and the plaintiff, having declined to amend, appeals from the' judgment entered.

Besides showing plaintiff’s judgment and execution, the complaint contains allegations showing that Jonathan Thompson died in the county of San Luis Obispo in 1875 testate, and that by his will he devised certain property in trust. The trust is set out in the complaint. As to John Thompson, plaintiff’s debtor, the language .of the will is, after naming the trustees: “I devise and give to them upon trust all my property to invest the same and all accumulations thereof, and to divide and pay the income thereof as it is received, viz: ... . one-fourth to [345]John Thompson for life, remainder over in trust to his children, equally, who shall attain twenty-one years of age or marry.”

The will was probated, and in 1877 the estate was distributed to the trustees in accordance with the terms of the will, and is now held by them. The demurrer was sustained, on the ground that the decree is res adjudicata.

All the questions raised on the appeal have been considered and determined in the case of Crew v. Pratt, ante, p. 131. The estate of Pratt was distributed in 1894, while the decree of distribution in the estate of Thompson was made in 1877, before the present constitution was adopted.

The learned counsel for the appellants contend, if I rightly apprehend their argument, that, as provided in section 1911 of the Code of Civil Procedure, that is only to be deemed adjudged in a judgment which appears on its face to have been so adjudged, “or which was actually or necessarily included therein or necessary thereto,” and that the only fact in issue upon the application for a distribution in the probate court was, Were the persons named in the will the persons petitioning? They contend that no issue having been raised in the probate court as to the validity of the trust, the matter was not then determined, but was left open to be construed by a court of equity. As authority for this proposition they cite Golson v. Dunlop, 73 Cal. 165; In re Vaughn, 92 Cal. 193; Lillis v. Emigrant Ditch Co., 95 Cal. 553, and other cases.

Those cases are not in point. The code requires the court to distribute the residue of the estate left after full administration to the persons who- by law are entitled thereto, and to name the persons entitled and the proportions or parts to which each shall be entitled.