NATHAN GOLDTREE et al., Appellants, v. JANE ALLISON et al., Respondents, 119 Cal. 344

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 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. Trustees appointed in a will to take property under a trust which by our law is void are not persons who are by law entitled to receive any portion of the estate.

If the trust which the testator has attempted to create is void, the property which the will so disposes of must be distributed otherwise. To determine who the persons are who are entitled to the estate, and their proportionate parts, the court must pass upon the validity of the disposition attempted by the testator. It may thus be found that as to some portion of the estate the testator has died intestate. In such cases the heirs must he determined. This was held to be within the province of the probate court prior to the present constitution.

In Estate of Hinckley, 58 Cal. 457, it was said: “It is under our system the necessary province of a probate court to inquire whether a valid trust has been created.” And further, “It is within the province of the probate court to define the rights of all who have legally or equitably any interest in the property of the estate derived from the will, whether they are entitled to any present enjoyment or their interests are contingent.” Hinckley died in 1877.

It must often become necessary for the probate court to construe the terms of a will in order to determine who are entitled to the estate, and to ascertain the interest to which they are entitled. Sometimes the court makes the distribution in the language of the will, but where there is any doubt as to the persons entitled, or as to the extent or nature of the estate or interest given by the terms of the will, the probate court not only may, but should, construe the will and define the interest given to each devisee. (See on this subject Crew v.

Pratt, supra.) The determination of the question as to the validity of the trust was, therefore, necessary to the decree of distribution. The judgment is affirmed, Henshaw, J., and McFarland, J., concurred.