Opinion
Rehearing Denied April 30, 1929
Hearing Granted by Supreme Court May 29, 1929
Appeal from Superior Court, Alameda County; J.D. Murphey, Judge.
Action by Harry W. Lobb against Frank Arthur Brown and another. From a judgment for defendants, and denial of a motion for order to set aside and vacate the judgment, and for entry of judgment in favor of plaintiff on the findings, plaintiff appeals. Reversed and remanded on appeal from the judgment, and appeal otherwise dismissed. COUNSEL
Hadsell, Sweet & Ingalls, of San Francisco, and Earl Warren and Ralph E. Hoyt, both of Oakland, for appellant.
Byrne & Lamson and Knight, Boland & Christin, all of San Francisco, for respondents.
OPINION
NOURSE, J.
The plaintiff sued in equity to have it declared that the defendants held in trust for him properties which they had received under decrees of partial distribution under the estate of Mary Ellen Moore, deceased. The defendants had judgment, and the plaintiff has appealed upon typewritten transcripts.
Mary Ellen Moore died testate on August 14, 1920, in the county of Alameda. In her will she made a number of special bequests in which she bequeathed to the defendants both real and personal property. The seventeenth paragraph of her will devised all the residue to the two defendants and to this plaintiff, share and share alike. The eighteenth paragraph of the will reads as follows: "If any person named herein, or unnamed herein, shall institute proceedings in anywise contesting this my last will and testament, then I give, devise and bequeath to such person or persons the sum of one dollar ($1.00), and no more. In the event of any person named herein contesting this will, then the share of said person mentioned in this will shall go to the residuary legatees or legatee not contesting." Previous to making said will, and on the 4th day of April, 1910, Mary Ellen Moore had made another will wherein she bequeathed to these defendants certain specific legacies and left to them all the residue of her estate. On January 7, 1921, the two defendants received under a decree of partial distribution property valued at $103,926, and on July 20, 1921, they received under another decree of partial distribution additional property valued at $14,564.
Between the dates of these two decrees of partial distribution and on June 9, 1921, George J. Moore and certain named stepchildren of the decedent, Mary Ellen Moore, filed a contest directed solely to that portion of the 17th clause of the last will of Mary Ellen Moore which bequeathed one-third of the residue of the estate to the plaintiff herein. Thereafter, and in August, 1922, this contest of the will came to trial, and the defendant herein, Frank Brown, secretly supplied witnesses, documentary evidence, and advice to the contestants and to their counsel, and the defendant Herbert Brown paid all the costs and expenses of the litigation for the contestants, including their attorney’s fees.
On September 2, 1920, the will of Mary Ellen Moore was duly admitted to probate upon the petition of the plaintiff herein, who was named in said will as executor. Immediately thereafter, and on September 8, 1920, one of the law firms representing the defendants herein (but not the same attorneys who represent Herbert Brown on this appeal) filed in the offices of the county clerk of Alameda county their notice of appearance and demand for notices as such attorneys. This firm continued to act as the attorneys for these defendants throughout the proceedings of probate of said estate, applied for and conducted the proceedings leading up to the two decrees of distribution, and appeared for them openly and at the time of the trial in all the matters relating to the contest of the will on the part of George Moore and others heretofore mentioned. (The trial court found that this firm of attorneys was not authorized to appear at the trial of said contest on behalf of defendant Herbert Brown, and that said defendant had no knowledge that any member of said firm did appear at said trial, but the record evidence is all contrary to the finding, and the finding is directly contrary to the express admissions in Herbert’s answer.) In this contest R.L. McWilliams appeared as attorney for the contestants. His entire fee for these services and all the costs of the contest were paid to him by a member of said firm of attorneys with moneys secured by him from Herbert Brown, one of the defendants herein. Following the trial of that contest and the judgment adverse to the contestants therein, and at the special urgence of this attorney, McWilliams took an appeal from said judgment, which was wholly financed through moneys paid to him by said attorney and obtained from Herbert Brown for that purpose. The activities of the defendant Frank Brown consisted mainly in supplying witnesses and documentary evidence to Mr. McWilliams during the course of the contest and in his attendance at the time of the trial, but manifestly the most substantial aid given to the contestants, other than supplying the funds, was that given by their counsel in filing their joint answer in which they failed to deny the allegations of the petition charging Lobb with undue influence in procuring the residuary bequest from Mrs. Moore, in his attendance at the counsel table during the course of the trial, in his encouragement and co-operation with Mr. McWilliams, and in his open declaration in court that, though appearing for the two contestees, "I have no hesitancy in saying that we would like to see the contestants succeed in this case," and that his clients had a financial interest in it if the contestants did succeed. The "financial interest" of the defendants in the contest of the will was this: Under a previous will executed by Mrs. Moore these two defendants were named as the only residuary legatees; if, therefore, the contestants were successful in defeating the portion of the will probated, it was agreed between them that they would offer the prior will for probate and thus secure for themselves the entire residue of the estate, except that, as Herbert Moore testified, the "understanding was that in case they (contestants) were successful in the contest they (contestants) were to receive $15000."
With the exceptions noted and those hereinafter referred to, the trial court found all the foregoing facts to be true. Upon these findings the trial court drew the conclusions of law that the plaintiff had no legal capacity to sue; that there was a misjoinder of causes of action and a misjoinder of defendants; that the defendant Frank A. Brown did not institute proceedings or contest the will or any portion thereof; and that the plaintiff was not entitled to any judgment against either defendant. Following the entry of the judgment the plaintiff moved the trial court, in accordance with sections 663 and 664, Code of Civil Procedure, for an order setting aside and vacating the judgment, and for the entry of a judgment in favor of plaintiff upon the findings. This motion was denied, and an appeal was taken. This appeal is presented upon the same transcript with the appeal from the judgment.
At the outset the appellant attacks the conclusions of law touching the matter of procedure. He insists that the trial court was in error in concluding that he had no legal capacity to sue. We agree with his contention in this respect. Want of legal capacity to sue is a ground for special demurrer within the provisions of section 430, Code of Civil Procedure. When the want of capacity is apparent from the face of the complaint, and objection thereto is not taken by demurrer, it is deemed waived. Section 434, Code Civ.Proc.; Agricultural Extension Club v. Hirsch & Son, 39 Cal.App. 433, 435, 179 P. 430; Crittenden v. Superior Court, 166 Cal. 340, 345, 136 P. 287. The ground upon which the respondents seek to sustain this conclusion of law is that, because the appellant was the executor of the estate and the property in suit was estate property, he should have sued as an executor, and that he could not sue as an individual. Though the theory is wholly untenable, all the facts covering the relation of the appellant in his character as an executor, his interest as a residuary legatee, the proceedings in the estate by which partial distribution was made, and the manner in which the respondents secured possession of the property in suit appeared on the face of the complaint. If these facts would render the appellant incapable of suing in his individual capacity, that plea should have been made by special demurrer, and this was not done. But the appellant did have legal capacity to sue. The property had been in the possession of the executor and had gone out of the estate by means of decrees of distribution, which had become final. Neither the executor nor the probate court had any jurisdiction over the property thereafter. Estate of Baird, 181 Cal. 742, 744, 186 P. 351. By the terms of the will a contest on the part of the respondents herein forfeited their legacies to the appellant. The appellant was, therefore, the only party in interest in having such forfeiture declared. He is, therefore, in the same position as that of an heir who sues the distributee under the will to impress a constructive trust upon property which the distributee has received under such conditions as would make the distributee an involuntary trustee within the terms of section 2224, Civil Code. Such cases are numerous. Brazil v. Silva, 181 Cal. 490, 185 P. 174; Morgan v. Asher, 49 Cal.App. 172, 193 P. 288; Thompson v. Thompson (Cal.App.) 267 P. 375; McCabe v. Healy, 138 Cal. 81, 70 P. 1008. In support of their position respondents cite Holland v. McCarthy, 177 Cal. 507, 171 P. 421. The case is not in point. There the plaintiff sought to recover property alleged to have belonged to the decedent during her lifetime. The plaintiff, though an heir to the estate, was not the executor, and the court merely held that it was the executor’s function to sue for this purpose. But it will be noted that the property had never gone through administration, as is the case here. The real ground upon which the decision rested was that a judgment in such a case in favor of an heir would be no plea in bar in an action against the same defendant for the same property brought by the executor of the estate. Estate of Clark, 190 Cal. 354, 212 P. 622, cited by respondents, merely holds that a judgment in an action between the administrator and another involving title to property claimed by the estate is binding upon an heir under the well-accepted rule that the administrator is the representative of the heirs in all such proceedings.
The appellant complains of the findings that there was a misjoinder of causes of action, and that there was a misjoinder of parties defendant. In the discussions in the brief counsel have argued these two findings as though they presented but one issue. But they are separate issues and should be separately treated. The question of a misjoinder of causes of action takes us to section 427, Code of Civil Procedure, which provides what character of causes of action may be united in the same complaint, but section 430, Code of Civil Procedure, specifies the improper union of several causes of action as a ground for demurrer to the complaint, and section 434, Code of Civil Procedure, provides that, if no objection is taken, either by demurrer or answer, the defendant must be deemed to have waived the same; the objection by answer being permitted only when the matters enumerated in section 430 do not appear upon the face of the complaint. Here the objection on the ground that there was a misjoinder of causes of action was not raised by either demurrer or answer, and it must, therefore, be deemed waived. This has been the rule since Macondray v. Simmons, 1 Cal. 393, and further discussion of the point is unnecessary.
The objection on the ground that there was a misjoinder of parties defendant was not raised by demurrer by either party, and was not raised by answer or other plea on behalf of the respondent Frank Brown. Under the rule just cited this respondent must, therefore, be deemed to have waived the objection.
As to the respondent Herbert Brown, he did make the objection in his answer that he was improperly joined with his co-respondent. Manifestly, if the misjoinder is apparent on the face of the complaint, objections should have been made by demurrer (section 433, Code Civ.Proc.), and, not having been so made, it could not have been raised in the answer. As far as we are able to understand the argument of counsel for Herbert Brown, it seems to be that he was prejudiced by the joinder of Frank as a party defendant, because the appellant was thereby enabled to bring before the court the activities of Frank which were alleged to have been made in behalf of the contestants of the will. This may have emphasized the evil committed by Herbert, but the cause of action framed by the complaint was that Herbert and Frank, admittedly represented in the contest by the same attorney, were working in concert for the purpose of defeating the will, one furnishing the money to enable their adversaries in the trial to prosecute the contest, the other furnishing evidence and information to their adversaries’ counsel for the same purpose. That the appellant was unable to prove all these allegations does not support a finding that the respondents were improperly joined in that cause of action. But, aside from this, the complaint stated a good cause of action against Herbert Brown, and the evidence required a finding and judgment against him as we will hereafter point out. This being so, he cannot object that another has been joined with him against whom a cause of action may not have been proved. Frank Brown having waived the objection and thus consented to the joinder of Herbert is in no position to raise the point on this appeal, and, if it be Herbert’s position at this time that his case should have been separated from Frank’s because of his residence in another county, then he too has overlooked his legal rights during the course of the proceedings in the trial court. Gardner v. Samuels, 116 Cal. 84, 89, 47 P. 935, 58 Am.St.Rep. 135.
Aside from the question of procedure in raising the objections, there is no merit in the point. The three parties were all beneficiaries under the same clause of the will which provided that, in the event that one or more should contest the will, his interest should go to the one or to those who did not contest. Thus, if appellant was right in his claim that both Frank and Herbert Brown contested the will, he would be the sole beneficiary under that clause and would be the sole party plaintiff in an action to have a trust declared with himself as the beneficiary. On the other hand, if one of the Browns contested and the other did not, then the one contesting would alone forfeit his interest in the estate, and in that event the appellant herein and the noncontesting Brown would be the beneficiaries under the will and under the trust which was sought to be established. They then would be the proper parties plaintiff, but, if one should fail to join as a party plaintiff, he would be both a proper and a necessary party defendant. This is so because of the rule that in an action to declare a trust in relation to particular property all those who are entitled to or claim to be entitled to any portion of the trust estate are proper parties defendant. Jenkins v. Frink, 30 Cal. 586, 89 Am.Dec. 134, O’Connor v. Irvine, 74 Cal. 435, 443, 16 P. 236.
Aside from the rule of these decisions, the right of the appellant to join both respondents as parties defendant is statutory. Section 379, Code of Civil Procedure, provides that, when any person claims an interest in a controversy adverse to the plaintiff or "who is a necessary party to a complete determination or settlement of the question," he may be made a party defendant. This, of course, is particularly applicable to all actions in equity such as we have here, because of the principle of public policy enforced in courts of equity "that a decree should finally and completely determine the rights which all persons have in the subject matter decided, so that the parties may safely obey and act upon the decree, and a multiplicity of suits or a circuity of proceedings may be avoided." 21 C.J. 258.
For the foregoing reasons we conclude that the trial court was in error in finding that the appellant here did not have capacity to sue, that there was a misjoinder of causes of action, and that there was a misjoinder of parties defendant. The finding that the attorneys appearing were not authorized to appear at the trial on behalf of the defendant Herbert Brown, and that said Herbert Brown had no knowledge that they did appear at said trial, is wholly unsupported by any evidence of any character, and is without force, because it was admitted in the answer of this defendant. The finding that the said Herbert Brown paid to the attorney for the contestants costs and attorney’s fees expended in that contest, as well as the expenses of prosecuting an appeal therein, and that, when he did so, "he knew that said money was to be so used and thereafter he knew that the same was so used," was sufficient to support a judgment against said respondent Herbert Brown. The matter to be determined as to his interest is whether his codefendant, because of nonparticipation in the contest, should be held a joint beneficiary with the appellant in the share forfeited by Herbert. The finding or conclusion that Frank Brown did not contest the will is a mixed finding of fact and law, and, as we have reached the conclusion that the appellant is entitled to a new trial as to that issue, it will be necessary to relate the evidence covering his activities in the contest more at length.
On the merits of the controversy two questions present themselves for consideration: First, whether the acts of respondents or of either of them were sufficient to constitute a contest within the terms of the will, and second, whether, if this be so, the appellant should be permitted to follow the properties received by the respondents under the decrees of partial distribution and to hold the respondents or either of them as trustees of such property for his benefit.
Clauses of this character, providing for a forfeiture in the event of a contest of a will, have long been approved by the courts of this state as within public policy. The reason for the rule is found in Estate of Hite, 155 Cal. 436, 441, 101 P. 443, 445 (21 L.R.A.[N.S.] 953, 17 Ann.Cas. 993), where the court said: "Experience has shown that even after the death of a testator, unexpected difficulties arise, technical rules of law are found to have been trespassed upon, contests are commenced, wherein, not infrequently, are brought to light, matters of private life that ought not be made public, and in respect to which the voice of the testator cannot be heard, either in explanation or denial, and as a result the manifest purpose of the testator is thwarted." In re Kitchen, 192 Cal. 384, 388, 220 P. 301, 302 (30 A.L.R. 1008), the Supreme Court in approving a similar clause in a will said: "The testatrix could give or refrain from giving; and could attach to her gift any lawful condition which her reason or caprice might dictate. She was but dealing with her own property and the beneficiary claiming thereunder must take the gift, if at all, upon the terms offered." In Donegan v. Wade, 70 Ala. 505, it was held that one David Wade, Jr., was subject to the forfeiture under a similar clause of a will because he aided and abetted his sister in a contest of the will "that he was even bearing the expenses of the litigation, and advising in its management." In that case it was argued that Wade had not participated in the contest because he never appeared upon the records of the court as a contestant. But the court held that the steps taken by his sister constituted opposition to the unlitigated probate of the will "and the participation of David Wade, Jr., in such contest, was of the same character, however deficient in the candor of open resistance." The court further said in this opinion that to relieve him under these circumstances, and to visit the penalty of forfeiture upon his sister, would permit the law to place a premium upon artifice, and to suffer the just reproach of seeking after the shadow instead of the substance. It was said by the court to be a case for the application "of the principle, ‘qui facit per alium, facit per se.’ " In Re Stewart’s Will (Sur.) 5 N.Y.S. 32, 35, one Mrs. Wetherell was a legatee under a will containing such a forfeiture clause. A contest was filed by others, and Mrs. Wetherell entered into an agreement with them providing that she was to receive her legacy without regard to the outcome of the contest. The court held that by this agreement she elected to disregard the terms of the will and to cast her lot with the contestants. In Kayhart v. Whitehead, 77 N.J.Eq. 12, 76 A. 241, the court enforced the forfeiture clause upon the ground that, while Mrs. Whitehead was in attendance of the case in open court, counsel stated to the court that he appeared to argue on her behalf against the admission of the will to probate. Moran v. Moran, 144 Iowa, 451, 123 N.W. 202, 30 L.R.A. (N.S.) 898, 903, is authority to the point that an attack upon a single clause of the will is a "contest" within the terms of the will providing for forfeiture in the event of a contest of the will.
Respondents argue that the eighteenth paragraph of the will is aimed to penalize those who "institute proceedings" contesting the will, and that the facts here disclose that the contest was instituted without their knowledge. However, the same clause provides, "in the event of any person named herein contesting this will," then his share shall go to those not contesting. Manifestly, the payment of the court expenses incurred in the contest of a will and the payment of the fees of contestants’ counsel, though the legatee does not appear a party of record to the contest, are acts contemplated by the testator in providing for a forfeiture of the legacy of those who contest the will. As was said in Estate of Hite, 155 Cal. 436, 443, 101 P. 443, 445 (21 L.R.A.[N.S.] 953, 17 Ann.Cas. 993), after referring to Smithsonian Institution v. Meech, 169 U.S. 398, 18 S.Ct. 396, 42 L.Ed. 793, the purpose of these clauses is "to prevent the implication of any of the technical rules of law to be employed to thwart his expressed wishes; it was to prevent all attacks upon his character, reputation, or sanity by dragging into publicity his private life, and it was equally to secure to the beneficiaries whom he named, the fruits of his bounty. When it appears that the effect of the legal action which a contestant has taken has been to thwart the testator in any of these most obvious purposes, can the party, who has deliberately and designedly taken such action, be heard to say that he has not contested? We think not."
Here the trial court found that Herbert Brown paid through his attorney to McWilliams, the attorney for the contestants, the sum of $706.40, while the contest was in progress before the probate court for the payment of the expenses of the contest and of the contestants’ counsel fees therein; that after the decision of the probate court adverse to the contestants he paid in the same manner to McWilliams the sum of $100 for the prosecution of an appeal therein; and that at the time he paid these moneys he knew that they were to be used and were used for those purposes. It is true, as pointed out by this respondent, that the court found that Herbert Brown stated to his counsel that these advances were made as loans to the contestants. There is no competent evidence to support this finding, but it is immaterial any way as these loans were made, as stated by Herbert Brown, without any arrangement or communication with the contestants, without any evidence of indebtedness, and without any promise or terms of repayment. They were just as efficient an aid to the contestants whether they be called "payments" or "loans." But the advancement of the necessary funds to finance the contest was not the only act on the part of this respondent. His attorney appeared in open court with the attorney for the contestants, aided him in procuring witnesses in support of the contest, stated in open court on behalf of both respondents that they desired the contestants to succeed, and that they had a financial interest in the matter if the contestants were successful, and thereafter urged the attorney for contestants to take an appeal from the judgment. It is true that the trial court found that no member of this firm was authorized to appear at the trial of the contest on behalf of Herbert Brown, and that Herbert Brown had no knowledge that any such attorney did appear at said trial, but this finding must be disregarded because the allegation of that fact in the complaint was admitted in Herbert Brown’s answer, and furthermore, the finding is directly contrary to the evidence. The interest of this respondent is disclosed by his own testimony, which is that he had discussed with his attorney the probability of the contestants’ success in voiding the portion of the will attacked, and that it had been agreed in that event that his attorney would on behalf of himself and Frank Brown offer an earlier will of Mary Ellen Moore for probate under the terms of which this respondent and Frank Brown would receive the entire residue of the estate. Also that it was understood that if the contestants were successful that the contestants would receive the sum of $15,000.
The activities of the respondent Frank Brown are of a somewhat different character. He admitted in his answer that the defendants (himself and Herbert Brown) paid all the costs and attorneys’ fees of the contestants in the contest. He attended, with one exception, every session of the court during the trial of the contest, which lasted nine days; he knew that his attorney was sitting at the counsel table with Mr. McWilliams, attorney for the contestants, was suggesting questions to him, and otherwise aiding him in the contest; he took books, papers, and documents from the former home of the deceased and delivered them to the attorney for the contestants to aid him in the prosecution of the contest; he frequently met the attorney for the contestants prior to and during the trial, discussed the testimony which he could give at the trial, and brought other witnesses to the attorney for the contestants to aid in the contest. In consideration for this aid to them, the contestants, through their counsel, agreed that they would not oppose the probate of the former will of Mrs. Moore. The foregoing activities, which were established by competent evidence, would have supported a finding and conclusion by the trial court that Frank Brown had aided the contestants in their assault upon the will. In some respects, which are not necessary to detail here, the trial court found contrary to this evidence and drew the conclusion that Frank Brown did not contest the will, and for this reason a new trial will be necessary to determine that issue.
It is argued on behalf of both respondents that, notwithstanding their asserted activities in support of the contest, the appellant cannot recover in this action, because the decrees of partial distribution have become final and are conclusive upon any attack of this nature. They cite numerous authorities to the effect that a decree of distribution in a probate matter is a conclusive determination of the meaning and effect of the will, and that it is not subject to collateral attack nor to be impeached by resort to the terms of the will. All these authorities are beside the mark. The appellant herein sues to impress a trust upon the property obtained under the decrees of distribution, and does not attack the decrees themselves. The rule is well stated in Simonton v. Los Angeles T. & S. Bank, 192 Cal. 651, 658, 221 P. 368, 370, where the court said: "The sanctity and immunity of a decree of distribution which has become final attaches to the decree itself and not to those who under it may have derived an unconscionable advantage through fraud, accident or mistake." The cited case quotes with approval from Silva v. Santos, 138 Cal. 536, 541, 71 P. 703, where the authorities are gathered and the rule followed that equity has jurisdiction to do justice to the injured and to follow the property obtained under a decree of distribution to the extent that the one wrongfully holding the property may be declared a trustee for the one rightfully entitled thereto. In other words, actions of this character are actions in rem to have it declared that one who has wrongfully procured property under color of a decree or judgment becomes a trustee for those to whom it rightfully belongs. The case is on a line with Brazil v. Silva, 181 Cal. 490, 185 P. 174; Estate of Walker, 160 Cal. 547, 549, 117 P. 510, 36 L.R.A.(N.S.) 89; 25 Cal.Jur. 150.
Though many of the cases just cited stress the point that the property was gained by "fraud, accident or mistake" so as to bring them expressly within the terms of section 2224, Civil Code, the power of a court of equity is not confined to a case of that character. The broader view is expressed in 1 Pomeroy’s Equity Jurisprudence, § 155: "Constructive trusts are raised by equity for the purpose of working out right and justice. *** If one party obtains the legal title to property, not only by fraud or by violation of confidence or of a fiduciary relation, but in any other unconscientious manner, so that he cannot equitably retain the property which really belongs to another, equity carries out its theory of a double ownership, equitable and legal, by impressing a constructive trust upon the property in favor of the one who is in good conscience entitled to it, and who is considered in equity the beneficial owner." This rule was approved in Teich v. San Jose, etc., Bank of Savings, 8 Cal.App. 397, 402, 97 P. 167. It has been followed generally by the authorities. The appellant applies the rule to the case before us, through the argument that the noncontest clause of the will was in effect a stipulation or contract on the part of the testatrix under which the legacies were made, and that when the legatees took the property under the decrees of distribution they consented to all the terms of the will, including this clause. That is to say, that they thereby contracted with the testatrix and the beneficiaries under the will that, in the event they should contest the will, they would forfeit their legacies in accordance with the terms of the will. From this it is argued that, having agreed to the terms of the will, they are in equity bound to relinquish the property which they procured under it, and that, having refused to do so, equity should declare that they hold the property as involuntary trustees for those who in equity are entitled to it. The argument is supported by many authorities holding that one who accepts a legacy which is given under conditions mentioned in the will thereby ratifies and accepts the conditions and is bound to give effect to all its provisions and to perform the burdens attached to its benefit. Moore v. Baker, 4 Ind.App. 115, 30 N.E. 629, 51 Am.St.Rep. 203; Shaver’s Adm. v. Ewald’s Exr., 143 Ky. 160, 136 S.W. 130; Van Schaack v. Leonard, 164 Ill. 602, 45 N.E. 982; Tripp v. Nobles, 136 N.C. 99, 48 S.E. 675, 67 L.R.A. 449. The same principle is followed in Re Morrison, 29 Cal. 346, where it was said that he who accepts a benefit under a deed or will must adopt the whole contents of the instrument, conform to all its provisions, and renounce every right inconsistent with it. The principle underlying the rule of these authorities is stated in Holliday v. Perry, 38 Ind.App. 588, 597, 78 N.E. 877, 880, as follows: "The fact that the transaction was without fraud in its inception did not prevent its becoming fraudulent upon the subsequent refusal of appellee to perform his part of the agreement." The Indiana court in the same case stated the principle somewhat differently in its quotation from Story’s Equity Jurisprudence: "Fraud, indeed in the sense of equity, includes all acts, omissions and concealments which involve a breach of legal or equitable duty, trust, or confidence, justly reposed, and are injurious to another."
Respondents first filed their petition for partial distribution for portions of the property bequeathed them under the terms of the will. After having obtained this property the contest of the will was filed. Thereafter, the respondents filed another petition for further partial distribution, and obtained additional property through a decree which recited that this property was a "portion of the property to which the said petitioners are entitled under the will." The contest was then heard and determined, and thereafter the respondents filed their petition for a final distribution of the property claimed by them under the will. Under these circumstances the respondents must be deemed to have elected to stand by the terms of the will. They could not, therefore, openly contest the will without first having restored to the estate the property which they procured under it. Holt v. Rice, 54 N.H. 398, 20 Am.Rep. 138. They must, therefore, be held to have contracted to abide by the terms of the will and to have agreed that, if they did contest it, they would forfeit their legacies under it. If, therefore, the acts here proved constituted a contest of the will on their part, they are now holding property which in equity and good conscience they are not entitled to, and their acts are a fraud upon the testatrix and upon the beneficiaries under the will. The case is on a line with those authorities which hold that, where one has made an oral promise with a decedent to make a special use of a devise to him and thereby obtain the legal title to the property, equity will hold that he is an involuntary trustee for the beneficiary, even though the oral promise is within the statute of frauds. As said in Re O’Hara, 95 N.Y. 403, 47 Am.Rep. 53, cited with approval in Brazil v. Silva, 181 Cal. 490, 497, 185 P. 174, 177: "Equity acts in such case not because of a trust declared by the testator, but because of the fraud of the legatee. For him not to carry out the promise by which alone he procured the devise and bequest, is to perpetrate a fraud upon the devisor which equity will not endure."
From the foregoing we conclude that the acts of the respondent Herbert Brown recited herein, and found to be true by the trial court, constituted a contest of the will on his part, and entitled appellant to judgment against him. The cause as to this respondent must, therefore, be reversed, with directions to the trial court to enter judgment against him as prayed for in the complaint, subject, however, to the further finding of the participation of his co-respondent in such contest. That is to say, that if on a retrial of this issue, it be found that the respondent Frank Brown did participate in said contest, then separate judgments should be entered against each respondent, decreeing that each is holding the properties procured by him under these decrees of distribution in trust for the use and benefit of the appellant herein. If, on the other hand, it be found on a retrial of that issue that the respondent Frank Brown did not participate in said contest, then the judgment should run against Herbert Brown, decreeing that he holds the property obtained by him under these decrees of distribution in trust for the use and benefit of the appellant herein and of the respondent Frank Brown, share and share alike.
This brings us to a consideration of the case relating to the respondent Frank Brown, as distinguished from the case made against his co-respondent. The trial court drew its conclusion of law from the facts found that this respondent did not institute proceedings in anywise contesting the will, and did not contest the will. We are satisfied from our review of the record that the findings of fact are all too favorable to this respondent. The evidence is that this respondent attended the sessions of the trial of the contest on all but one day thereof, and was mainly active in furnishing the contestants’ counsel with evidence to support their attack upon the will. In addition to this, it is conceded that his counsel appeared at the same trial and consulted with the contestants’ counsel during the course of the trial. As has heretofore been pointed out, these attorneys were the attorneys for both Herbert Brown and Frank Brown in the trial of that contest. These parties appeared jointly as defendants in the contest, and filed a joint answer through these attorneys. The interest of Herbert Brown in financing this contest through his attorney has already been detailed, but the trial court found that the respondent Frank Brown had no knowledge of this fact. Appellant insists that such knowledge must be presumed under the well-known rule that knowledge of the attorney is knowledge of the client. 6 Cor.Jur. 638; Wittenbrock v. Parker, 102 Cal. 93, 36 P. 374, 24 L.R.A. 197, 41 Am.St.Rep. 172; Bogart v. Geo. K. Porter Co., 193 Cal. 197, 210, 223 P. 959, 31 A.L.R. 1045. Respondents argue that the rule should not be applied here, because the interests of the two respondents were adverse, that is to say, that if Frank Brown through their common attorney was able to have Herbert Brown successfully contest the will without his being involved therein, he would succeed to a portion of the legacy forfeited by Herbert Brown and that, if Herbert was able in the same way to have Frank carry on the contest, Herbert would succeed to a portion of Frank’s forfeited legacy. There is nothing, however, in the record to support this dual relation. As we have said, both parties appeared by the same attorney, and both had an equal interest in the success of the contest to the portion of the will covering the legacy to this appellant.
It is inconceivable that this respondent did not have actual knowledge of the activities of his co-respondent in financing the contest or of the agreement made by his counsel with Mr. McWilliams to compensate the contestants in the event of a favorable judgment. But, if he did not have actual knowledge of these facts, this would seem to be a proper case for the application of the presumption of knowledge of the client because of the actual knowledge of the attorney. However, the trial court found in favor of this respondent in both instances, and we do not feel that the undisputed evidence, however persuasive it may be, is sufficient to support a contrary finding by this court. We are asked to take additional evidence under section 956a, Code of Civil Procedure, as added by St.1927, p. 583, for this purpose, but we are satisfied that the convenience of the witnesses, and of the parties as well, would best be served by having this done in the trial court, and the cause will be remanded for that purpose. In remanding the cause it is with the direction that the trial court take evidence on this issue alone, that is to say, the acts and conduct of the respondent Frank Brown in relation to the contest of the will and his participation therein, either individually or through his attorney and associate, Herbert Brown, and his knowledge of the acts and conduct of his associate, Herbert Brown, in aid of said contest. Upon the conclusion of said trial, judgment should be entered against the respondent Herbert Brown as heretofore directed and in favor of the appellant for the whole or for the half of Herbert Brown’s interest as the case may be, and judgment should be entered either in favor of or against the respondent Frank Brown as the court shall determine the issue of his participation in said contest.
The appeal from the order denying appellant’s motion to enter a different judgment on the findings requires but a word. Obviously, upon the record as it stood at the time, this motion should have been granted in part. The finding of participation by Herbert Brown and of nonparticipation by Frank Brown demanded a judgment in favor of appellant for one-half of Herbert Brown’s forfeited share of the estate. But, as we have shown that the finding and judgment favorable to Frank Brown must be reversed, it is apparent that this motion should not be granted at this time. The appeal from this order is, therefore, dismissed.
The judgment is reversed, and the cause is remanded for the purposes heretofore indicated.
We concur: KOFORD, P.J.; STURTEVANT, J.