
    No. 220
    No. 19941
    Leona Estella Seeds et al. v. James W. Seeds et al.
    Error to the Court of Appeals of Franklin county.
    1271. WILLS — Where an instrument in form of a will has been created by forgery and same has been probated by perjured testimony, and by other fraudulent means one gets the deed to real estate, he will be deemed a trustee ex maleficio for the next of kin who would have been entitled to the property in the event of intestacy.
    27. ACTIONS — Where next of kin have no notice or knowledge of fraud and because of ignorance thereof, fail to bring suit within one year after becoming of age, they will have recourse to equity within 4 years after discovery of fraud.
    1017. REMEDY — 1. The right to prosecute further proceedings in original action upon ground of fraud in obtaining judgment or order is not exclusive. Defrauded party may maintain independent suit in equity this remedy being cumulative to Sec. 11631 GC.
    2. Party obtaining property by fraud and transfers same to third party without consideration, an action to set aside former judgment is inadequate, but should be brought in equity.
    1197. TRUST & TRUSTEES — When fraudulent beneficiary is father of next kin he stands in fiduciary relationship and same imposes legal duty to protect their interests and by reason of such violation he is a trustee maleficio.
   MARSHALL, C. J.

1. Where an instrument in form a will has been created by forgery and the same has been probated by perjured testimony and the next of kin have not been notified of the probate proceedings but the return of service upon the next of kin is falsified and where the party procuring such forged instrument and who has conspired to probate the same as a will by false testimony is the sole beneficiary named under the alleged will and has later by legal procedings secured a transfer of the legal title to such property to his own name, he will be held to be a trustee ex maleficio for the benefit of the next of kin who would have been entitled to the property in the event of intestacy.

2. Where the next of kin have no notice or knowledge of such fraud and because of ignorance of the same fail to bring an action to contest such alleged will within the period of one year after they respectively arrive at majority, they may maintain a suit in equity within the period of four years after discovery of the fraud.

3. The right to prosecute further proceedings in the original action on the ground that there was fraud in obtaining the judgment or order is not exclusive. The defrauded party may maintain an independent suit in equity to obtain relief and this right is cumulative to the provisions contained in Section 11631, General Code.

4. Where a party obtaining property by such fraudulent means transfers the same to a third person without consideration and the legal title is held by such third person before suit begun by the next of kin, an action at law to set aside the judgment is inadequate. The necessity to make new parties becomes additional justification for maintaining a suit in equity.

5. Where the frudulent beneficiary is the husband of the decedent and the father of the next of kin he stands in a fiduciary relation toward the next of kin and this relationship imposes upon him the legal duty to protect then1 interests, and by reason of the violation of that duty he is created a trustee ex male-ficio.

Judgment reversed.

Day, Allen and Kinkade, JJ., concur. Jones, and Matthias, JJ., dissent.  