
    [No. 15265.
    In Bank.
    December 23, 1893.]
    MARY S. DOUGHERTY et al., Appellants, v. COLUMBUS BARTLETT et al., Respondents.
    Estates of Deceased Persons—Equity Jurisdiction—Action for Accounting Against Trustees Under Will—Pendency of Administration.—Where the executors named in the will are also appointed as trustees to control and manage the residue of the estate, and to distribute it among certain beneficiaries, a court of equity has no jurisdiction of a bill to enforce an accounting of the trust estate,’pending administration of the estate in the probate court.
    Id.—Accounting in Probate Court.—Until distribution of the estate, the executors named as trustees in the will hold the property of the deceased as executors, and must account to the probate courj for all property of the estate "received by them, and for their management thereof under the will of the deceased; and it is for that court to determine what commissions they are entitled to as executors, and what moneys they have properly expended in discharge of their duties, and whether they have properly managed the estate, or have mismanaged the same, or permitted waste thereof.
    Id.—Exclusive Jurisdiction of Probate Court—Attorney for Heirs— Homestead—Family Allowance.—The probate court has exclusive jurisdiction to determine whether an attorney shall be appointed to represent absent or minor heirs, and to fix the amount of his compensation; and in the absence of a showing of fraud, its orders setting apart a homestead for the widow of the deceased, and making a family allowance, cannot be reviewed in a court of equity.
    Id.—Claim of Widow—Insufficient Cause of Action.—The fact that the widow of the deceased openly asserts that she will commence legal proceedings against the executors as trustees under the will, to compel them to pay her out of the trust estate a considerable sum of money, does not give to other beneficiaries of the trust a cause of action against the widow or the executors.
    Appeal from a judgment of the Superior Court of the City and County of San Francisco.
    The complaint filed in the superior court is entitled “ A bill of equity to enforce the performance of a special trust, and for the accounting of the trust estate by the trustees thereof, and for other purposes.”
    The action was brought by the plaintiffs, as nephews and nieces of William Walkerly, deceased, and the complaint sets forth a will of the deceased, which devises the residue of the estate to the persons named as executors of the will, in trust to manage the same and to pay certain annuities to the wife and sister of the deceased, and to annually distribute the residue of the profits of the trust estate, deducting certain charges, equally among the nephews and nieces of the deceased.
    The complaint alleges that the defendants as trustees and executors have wasted the trust estate, and wrongfully appropriated moneys out of the rents, issues, and profits thereof, for their commissions as executors, and for the compensation of an attorney for the absent heirs; that from their negligence in conducting a specified action, certain other sums and interest were lost to the estate; that an order making a family allowance to the widow was collusively consented to by the executors, and that she threatens to enforce the payment of the same by legal proceedings; that the probate court had improperly set apart a homestead to the widow out of property conveyed and trusted to the executors; ¿hat the executors intend to appropriate other large sums for their future commissions; that their waste of the estate is willful, and that the executors are insolvent.
    A demurrer was interposed to the complaint, specifying among other grounds “that the court has no jurisdiction of the subject of the action, and that the probate proceedings upon the will of the deceased were pending and undetermined and not in a condition to be closed."
    The superior court sustained the demurrer, and entered a judgment dismissing the bill, from which this appeal was taken.
    Further facts are stated in the opinion of the court.
    
      Fox & Kellogg, and B. B. Newman, for Appellants.
    These beneficiaries have a right to go into a court of equity and ask for an accounting from the trustees named in the will as to what they have done with the property, regardless of any assumptions of the court of probate over the trust property. A bill in equity can be filed for that purpose at any time after the will is probated and recorded in the proper court of probate, if the testament upon its face, upon an inspection of it as recorded, shows a testamentary disposition by the testator of his property by a lawful will. (Deck v. Gerke, 12 Cal. 433-37; 73 Am. Dec. 555; Clarke v. Perry, 5 Cal. 60; Sanford v. Head, 5 Cal. 297; Williams v. Williams, 73 Cal. 99-104; Rosenberg v. Frank, 58 Cal. 387; Payne v. Payne, 18 Cal. 291-303.) The probate court is not a court of equity. (Meyers v. Farquharson, 46 Cal. 190-200.)
    
      H. C. Firebaugh, for Respondents.
    The superior court sitting in probate had, when this suit was commenced, and has, original and exclusive jurisdiction over the will and estate referred to in the complaint, and all matters pertaining thereto, as well as over the accounts of both the executors and trustees named in his will. (Const., art. 6, sec. 5; Code Civ. Proc., secs. 76, 1294, 1295,-1699, 1743; Auguisola v. Arnaz, 51 Cal. 438; Estate of Bowen, 34 Cal. 682; Gurnee v. Maloney, 38 Cal. 85; 99 Am. Dec. 352; Bush v. Lindsey, 44 Cal. 124; Estate of Hudson, 63 Cal. 454; Theller v. Such, 57 Cal. 459; Guardianship of Danneker, 67 Cal. 643; Estate of Griffith, 84 Cal. 107; In re Burton, 93 Cal. 459; Code Civ. Proc., secs. 1295-1743.) And this even though the estate in probate had been finished and distributed to the trustees. (Code Civ. Proc., sec. 1699.)
   De Haven, J.

The demurrer to the complaint was' properly sustained. "Until distribution of the estate of William Walkerly, deceased, by the probate court, the respondents, Bartlett, Bacon, and Barker, hold the property of said deceased as executors of his will, and they must account to the probate court for all property of the estate of said deceased received by them as such executors, and for their management of the same prior to its distribution under the will of deceased, and it is for that court to determine what, if any, commissions the said named respondents shall be entitled to receive for their services as executors of said will, and also to determine in the settlement of the accounts of the said executors what moneys expended by them in the discharge of their duties were properly expended, and so chargeable to the estate represented by them, and whether they have exercised ordinary care in the management of the property of said estate, or whether they have mismanaged the same or permitted waste thereof.

It was a question solely for the consideration of the probate court, whether an attorney should be appointed to represent absent or minor heirs, and, if so appointed, the amount of compensation to be allowed him.

The probate court also had jurisdiction to make the order setting apart a homestead for the widow of the deceased Walkerly, and to make the order for a family allowance, and no facts are alleged in the complaint showing that such orders were fraudulently procured by the defendants, or either of them, as the result of any misrepresentation or concealment of facts; nor does it appear from the allegations pf the complaint that the court committed any error in making such orders, even if we could review the same in this action.

The fact, if it be one, that the defendant, Blanche M. Walkerly, openly asserts that she will commence legal proceedings against the other defendants as trustees under the will, to compel them to pay her out of the trust estate the further sum of twenty-one thousand dollars, does not give to plaintiffs any cause of action against her or the other defendants.

It is unnecessary to attempt any synopsis of the voluminous complaint filed in this action, or to notice more particularly its several allegations. We do not understand from the complaint that the executors, who are also the trustees under the will of the deceased, have failed “to annually distribute the residue of the rents and profits of the trust estate” among the nephews and nieces of the deceased, as directed by the will, or that this is an action to enforce this particular duty of the defendants, who are named as executors and trustees under the will, and we express no opinion upon the question whether such an action could be maintained in a court of equity prior to the distribution of the estate under the will.

Judgment affirmed.

Fitzgerald, J., McFarland, J., Garoutte, J., Paterson, J., and Harrison, J., concurred.  