Opinion
In Bank. Appeal from Superior Court, San Diego County; T. L. Lewis, Judge.
[155 P. 99] A. Lincoln Walker and Ansel Smith, both of Los Angeles, and Luce & Luce, of San Diego, for appellants.
Sam Ferry Smith, of San Diego, for respondents.
ANGELLOTTI, C. J.
The application for a hearing in this court after decision by the District Court of Appeal of the Second District is denied. In denying such application we deem it proper to say that, in so far as anything said in the opinion may be supposed to imply that a fiduciary relation on the part of those securing the probate of a will is essential to the making of a sufficient case of extrinsic fraud to sustain an action for a decree in equity charging the executor, legatee, or devisee with a trust in favor of the defrauded party (see Bacon v. Bacon, 150 Cal. 481, 89 P. 317; Sohler v. Sohler, 135 Cal. 323, 67 P. 282,87 Am. St. Rep. 98), it is not in accord with our view of the law. No such distinction is warranted by the authorities. Such a doctrine is not at all essential to the conclusion reached by the District Court of Appeal, and the opinion filed sufficiently disposes of the case without reference to any such doctrine, and on the theory that the parties must be deemed to have had notice of the proceedings in time to have enabled them to assail the will, and that they did not use due diligence in regard thereto. It may be that no such implication as suggested was intended by the learned author of the opinion, but we feel that some language used may be thought by some to be susceptible of that construction.
We concur: SHAW, J.; SLOSS, J.; LORIGAN, J.; MELVIN, J.