IN RE: GUMP'S ESTATE.* (1939)

This is an appeal by Bertha L. Cohen from the decree of the superior court settling the first and final account and report of the executors and ordering final distribution in the matter of the estate of Mabel B. Gump under whose will she was named a legatee in the sum of five thousand dollars. Her contention is that the executors should be charged with certain real property claimed to constitute part of the estate; that a trust under which it was held by the Wells Fargo Bank & Union Trust Company, a corporation, is void because not created for a lawful purpose in that it creates a perpetuity and is an unlawful restraint on the power of alienation. It is appellant's further contention that the executors should have been charged with secret profits made and to be made by them on the resale of personal property purchased from the estate.

Subsequent to the date of her will, Mabel B. Gump entered into an agreement with Wells Fargo Bank & Union Trust Company, a corporation, whereby there was executed and delivered to the bank an instrument of transfer, which may be referred to for the purpose of identification as a trust agreement, covering decedent's interest in two parcels of land and the improvements thereon. After a recital of sale and conveyance, the document provides in substance that a deed that day given by Mabel B. Gump to the bank covering the real estate in question had been given for the following uses and purposes, and subject to certain conditions, namely, that the bank hold the properties for twenty years as security for the payment of the sum of $75,000 with interest, and for such further sums in the way of taxes, assessments, liens, encumbrances, repairs, improvements, insurance premiums and any other expenses or moneys in connection with said properties that the party of the second part shall deem it necessary or proper to pay for the benefit of the first party in connection with the care of the properties, together with interest on such amounts advanced; that the bank manage and lease said properties, collect rents and pay out of such amounts the above advances, also a reasonable fee in connection with “this trust”. The bank is given full authority, without notice to the first party, to incur any indebtedness it deems necessary for the protection of the properties and to carry out the intent and purposes of the agreement; that the bank pay out of the income from the properties $750 a month on the indebtedness, together with the above amounts incurred in the management and care of the properties, the balance of the income to be paid monthly to the party of the first part. Provision is made that if the indebtedness of $75,000, together with all amounts advanced as above are fully paid, and all covenants of the agreement met during the term of the agreement, then at the expiration of the twenty-year term the bank shall deed the properties to the three children of the party of the first part, reserving to the said first party a life estate in the properties, together with the entire net rentals and income from the same. In the event, however, that at the expiration of the twenty-year term of the agreement, the above payments have not been fully discharged, then the trust shall continue and the title to said properties remain in the bank until all sums due are fully paid, at which time the properties shall be conveyed to the designated parties. In the event of the death of the first party during the term of the agreement, the second party is directed to convey the properties to the three children upon their giving a deed of trust to the properties to secure the balance of the indebtedness. In the event of the death of the first party prior to the expiration of the twenty-year term of the agreement, predeceased by any of her children, or if any of the children fail to execute a deed of trust, then the bank shall continue to hold title to the properties and shall make conveyance thereof, only if and when said indebtedness is fully paid, to such of the aforesaid three children of the party of the first part as shall then be living, and to the issue per stirpes of any of said three children who may then be dead, or, failing such issue, to the survivors or survivor of said children. Provision is made that should any of her children predecease the party of the first part or die before the expiration of the term of the agreement, leaving issue, such issue shall be named as grantee in place of such deceased child or children of the first party. Providing there is no surviving issue, such child or children of the party of the first part who may survive shall be named as grantee or grantees in the reconveyance of the properties. Said party of the second part is given the right at any time during the term of the agreement to sell and dispose of said properties, apply the proceeds to the indebtedness then due and invest the balance for the benefit of the party of the first part.

It is not necessary in this proceeding to determine whether the portion of the document providing for the payment of the indebtedness to the bank is in fact a deed of trust. An absolute deed, given for the purpose of securing a debt, may be treated as a mortgage, and this rule applies to deeds of trust with power to convey (Sacramento Bank v. Alcorn, 121 Cal. 379, 53 P. 813) notwithstanding the conveyance is made to the creditor instead of a third party. More v. Calkins, 95 Cal. 435, 30 P. 583, 29 Am.St.Rep. 128. If some of the essential features of a deed of trust, however, are incorporated in an instrument designed to create an inter vivos trust, it may not thereafter be successfully contended that, because rights under deeds of trust have become recognized property rules in the securing of loans and, as said in Sacramento Bank v. Alcorn, supra [121 Cal. 379, 53 P. 815], may not therefore “be reversed though erroneous”, an inter vivos trust, repugnant to constitutional and statutory provisions, must be upheld for the sole reason that deeds of trust have been declared not to be restraints on alienation. In the last cited case, 121 Cal. at page 385, 53 P. at page 815, the court said: “* the legislature can correct the evil if there be one. The courts cannot do so without producing widespread distrust and confusion, and we think, upon well-established and sound principles of jurisprudence, ought not now to interfere.” Assuming the security aspect of the conveyance to the bank may be severed from the provisions attempting to create a living trust, nothing herein is to be construed as impairing the rights, if any, of the bank to protect the loan feature of the conveyance. The bank is not a party to this proceeding and whatever rights it may have may be determined in an independent proceeding.

Respondents contend that the probate court is without jurisdiction to determine the question of the ownership of the property as between representatives of the estate and strangers to the estate, and call attention to evidence appearing in the transcript on appeal, stipulated by the respective parties to be correct, reading as follows: “It was further established that at the time of the death of said Mabel B. Gump there was due to Wells Fargo Bank & Union Trust Company an unpaid balance on the indebtedness mentioned in said agreement in the sum of $33,000.00, and thereafter and after the death of said decedent and after the appointment and qualification of said executors and in the month of April, 1935, Robert Livingston Gump, Richard Benjamin Gump and Marcella Gump, in their individual capacities, executed to Wells Fargo Bank & Union Trust Company a deed of trust on said property to secure their promissory note for said sum of $33,000.00, and thereupon and in said month of April, 1935, the said Wells Fargo Bank & Union Trust Company, as trustee under the trust agreement dated February 14, 1928, executed a deed of said property to said parties.” The court by its decree of settlement of the first and final account found “* that it is untrue that the following property [involved in this proceeding] described in said objections and exceptions to said first and final account and report of executors should have been inventoried as a part of the estate of said decedent”. As title was the only issue in dispute upon this item, the effect of the finding is that the estate did not hold title to the property.

The probate court has jurisdiction to determine a controversy as to title between an estate and its executors in their individual capacities. Bauer v. Bauer, 201 Cal. 267, 256 P. 820; Estate of Inghilleri, 27 Cal.App.2d 664, 81 P.2d 568. Two of the claimants herein are executors of this estate. The question of the jurisdiction of the court is generally determined by the status of the claimant. Guardianship of Vucinich, 3 Cal.2d 235, 44 P.2d 567; Estate of Roach, 208 Cal. 394, 281 P. 607; In re Haas, 97 Cal. 232, 31 P. 893, 32 P. 327. The appellant herein in her opposition to the settlement of the final account and the decree of distribution was not acting adversely; on the contrary, she sought a distinct benefit to the estate by an increase of its assets. The title in dispute was not between appellant and the estate, nor between appellant and the executors, but between the estate and the executors individually. Therein lies the difference between the facts in this case and the facts in In re Haas, supra, wherein a legatee claimed that certain property listed in an estate of a minor, who was not represented in the controversy, belonged to an estate of a deceased. The minor was a stranger and the court held such a matter should be left to other courts for determination. Appellant legatee herein had a right to resist in the probate proceedings an application for final distribution. Probate Code, § 1020; Bauer v. Bauer, supra; In re Burdick, 112 Cal. 387, 44 P. 734, and being an aggrieved party had the right to appeal from the order of the court. Probate Code, § 1240; Estate of Clark, 190 Cal. 354, 212 P. 622.

We believe the provisions of the decree in so far as they affect the title to this property to be erroneous, as will be hereinafter set forth, but erroneous only in the determination of a dispute between the interest of the estate and that of the executors individually. This brings us to consideration of a matter not touched upon by the parties to this appeal, namely, the rights and interests of Marcella Gump, a legatee under the will, a beneficiary under the so-called trust document, but not a party specially represented in the determination of this question. Marcella Gump occupied the same position in all respects as Robert Livingston Gump and Richard Benjamin Gump, except that she was not named to execute the provisions of the will. To that extent she is a stranger to the determination of the question involved herein and is entitled, should she so elect, to have her rights and interests determined in a forum outside of the probate jurisdiction of the court. No relief may here be afforded to the estate against any right, claim or interest of Marcella Gump, since the probate court lacks jurisdiction to adjudicate the rights of one claiming adversely to the estate, although its jurisdiction is recognized in claims between an estate and the executors or administrators thereof individually. Estate of Inghilleri, supra. Marcella Gump's interest not being an issue upon appeal, we must rest by quoting from In re Burdick, supra, 112 Cal. at page 391, 44 P. at page 734, wherein the court said: “* if serious questions upon such claims arise, the duty of the court might be to delay the final decree until such claims can be determined in another forum”.

The document having been stripped of its deed of trust, mortgage or security attributes, not involved in the determination of this appeal, and the court having indicated its views on the subject of the jurisdiction of the probate and other courts, it may be well to discuss generally the rule against perpetuities and restraints on alienation.

Except for charitable purposes, perpetuities are not permitted under our Constitution. Art. XX, § 9, Const. of Calif. Just as the state has the right to restrain the use of property for an unlawful purpose, so it may limit and even prohibit its disposition to prevent any delay beyond the allotted time in the vesting of future interests, and, in estates already vested, to prohibit restraints upon alienation. Civ.Code, § 715. A perpetuity in its broadest sense, as applied to property rights, refers to an estate or interest created therein, without limit of duration; that is, which may possibly last forever. It originally took the form of an interest or estate descending from generation to generation of lineal issue, the effect of which was to tie up property by restricting its alienability. The “rule against perpetuities” developed rather as a regulation than as a prohibition, and though the original term is still used it has become in a sense a misnomer. The early definitions are inadequate to express its present purpose. In California some idea of the early theory upon the subject may be obtained from the Debates in the Convention of California on the Formation of the State Constitution by J. Ross Brown at page 272, upon the offer of the section on perpetuities, where the following appears: “It is to prevent perpetuities of lands from families to families. It is upon perpetuities that aristocracies are built up. Democracy would soon be overturned if this was allowed. The principle is so well established that all our courts of law have made it a rule, in the absence of any statute upon the subject. Whenever they could possibly put any such construction upon any deed or instrument they have deemed themselves bound to do it.” The following statement from Tiffany indicates the trend of more recent thought. “The conception of a perpetuity as it presented itself to the minds of the early judges found its typical example in the case of a fee tail, as it existed before the introduction of methods by which it could be barred. * The word ‘perpetuity’ is still sometimes used in this primary sense, which is evidently the more natural signification of the word. This being so, the rule against perpetuities, of which we here treat, might, as stated by a leading authority on the subject, be more properly termed the ‘rule against remoteness', and, if this had been done, there would now exist a much more general apprehension of its true character.” (1 Tiffany, Real Property [2d Ed.] 598, 599.)

With the object of preventing perpetuities, there have developed rules against the creation of remote interests and restraints on alienation of present interests. All are aimed against “perpetuities” generally, but in a restricted sense the rule against perpetuities is the rule against remoteness of vesting. The constitutional rule against perpetuities has the same general purpose as the statutory provision against restraints on alienation, namely, to limit interference with the right of free transfer of property. The perpetuity rule, however, relates to a vesting beyond the permitted period, whereas the rule relating to restraints on alienation refers to the prevention of the transfer of property already vested. Estate of McCray, 204 Cal. 399, 268 P. 647. If the vesting of a future interest is to be postponed beyond the allotted time, and such fact appears from a fair and reasonable construction of the governing instrument, it is obnoxious to the constitutional provision. The rule of remoteness is controlling upon the provision of the Constitution declaring that “No perpetuities shall be allowed except for eleemosynary purposes”. Sec. 9 of art. XX of the State Const.

If by the terms of a document an equitable interest is to vest remotely or actually vested at the time of the creation of the attempted trust, or at the time of the death of the maker of the instrument, in determining the validity of the provisions of such a document under the rules relating to remoteness or to restraints on alienation, the test is, not what has happened, but what may occur under the terms of the instrument. If the trust attempted to be created designates specifically or by class a person to whom a conveyance may be made, and such person may be born after the prescribed period, the instrument is invalid. It makes no difference whether the person by chance happens to be born within the time limit. In other words, it is the possibility of the invalidity of the estate or interest in its inception rather than the actual remoteness of vesting or the time designated for its termination which is the vital question for decision. The contingent happening must be one that is certain to occur within the prescribed limit. The reason for this rule is obvious. It would be against public policy to await the possibility of the occurrence. Civ.Code, §§ 715, 716, 749, 771; Sheean v. Michel, 6 Cal.2d 324, 57 P.2d 127; Estate of Troy, 214 Cal. 53, 3 P.2d 930.

Analyzing the trust document and the possibilities thereof from the time of its inception, it will be noted that the bank is to hold and manage the properties as security for $75,000, for such improvements, encumbrances, taxes, interest, etc., as it shall deem necessary or proper to pay, and for any indebtedness that may be incurred in carrying out the terms of the agreement. While twenty years is designated as the life of the agreement, it was to continue and the title remain in the bank if all payments had not been discharged at the expiration of such period. In the event of the death of Mabel B. Gump during the twenty-year period, the bank was to convey the properties to her three children upon all of them executing a deed of trust to secure the balance due, “said note and deed of trust to contain such terms and provisions as may be suggested by said party of the second part [the bank]”. In case any of them failed to execute such deed of trust the bank was to continue to so hold the properties until the indebtedness was fully satisfied. In the event that any of the children of Mabel B. Gump predeceased her, the properties were likewise to be so held by the bank and conveyed, only if and when said indebtedness was fully paid, to such of the three children as were living at the time, and to the issue per stirpes of any of the said three children who might then be dead, or failing such issue, to the survivor or survivors of said children. In other words, the bank was to hold and manage the properties for an indefinite and possibly distant date before conveying them to the children, or to the children of the children, of Mabel B. Gump. This provision offends against the rule of remoteness.

In the event of the death of Mabel B. Gump, should any of the children fail to execute the deed of trust to the bank, the interests of not only the children, but of the children of the children of Mabel B. Gump would be affected. It may be asked, why should any of the children refuse to execute a note secured by a deed of trust? The trust agreement provided that the bank could incur indebtedness in connection with the property covered, which would represent a debt due the bank and for which it would be entitled to repayment, with interest at six per cent. The bank is given not only the power to manage, rent or sell the property, but discretion as to the amount of indebtedness it may place thereon. It is possible that conditions or bad business judgment in the management of the improvements would so encumber the property that the children or any of them, would not care to take over the burden of securing by a trust deed additional indebtedness under such terms and conditions as might be “suggested” or imposed by the bank.

Let us assume that one of the children has refused or will refuse to give a promissory note and deed of trust to the bank. One beneficiary by delay in executing the deed of trust could interfere with the rights, to the possible detriment, of the other beneficiaries, and thus postpone the vesting of title. Estate of Steele, 124 Cal. 533, 57 P. 564; Estate of Whitney, 176 Cal. 12, 167 P. 399; Estate of Maltman, 195 Cal. 643, 234 P. 898; Estate of Campbell, 28 Cal.App.2d 102, 82 P.2d 22. If the trust is invalid, as already pointed out, such invalidity dates from its creation. Sheean v. Michel, supra. The trust here attempted to be created is to continue as long as the indebtedness to the trustee exists, part of the income being paid to decedent's children, or to their children, whether or not they were in being at the date of the creation of the trust. We are of the opinion that the provisions of the trust for payment of the indebtedness in the manner outlined, and the repayment of the cost of improvements, without restriction, together with interest on such amounts, from the income of the properties, which could diminish or cease, might prolong the period of the indebtedness and thereby postpone the obligation to convey beyond the legally prescribed time limit.

As in the case of remote vesting, so every future interest already vested is void in its creation which by any possibility, limitation or condition whatsoever may suspend the absolute power of alienation for a period longer than during the lives of persons in being at the time of the creation of the limitation, or condition, or for a period exceeding twenty-five years from the creation of the suspension. Civ.Code, §§ 715, 716, 749, 771. In other words, assuming that title had already vested as applied to the facts and circumstances here presented, the rule is that if, at the time of the execution and delivery of this agreement, there was even a bare possibility that in carrying out the purposes of the trust the absolute power of alienation would be suspended beyond the permissible period, it violates the statutory rules and must be declared void. Estate of Troy, supra; Sheean v. Michel, supra, and cases cited therein.

The vesting of title in the children could not occur at the time of the execution and delivery of the document to the bank, and could not occur immediately upon the death of Mabel B. Gump because of the contingency that the children must give a promissory note and deed of trust to secure the loan at least concurrently with the execution of the deed of conveyance from the bank to them. The invalidity of the document appears from its inception. The deed from the bank to the children could be indefinitely postponed and indeed the conveyance never made.

Assuming that all of the children of the trustor actually delivered the deed of trust to the bank, and that the operation of the trust so far has worked out in harmony with the plan of the trustor, we are still confronted by the rule that alternative contingencies must be viewed as of the time the instrument takes effect and may not be contemplated retrospectively. It is contended that in order to comply with the rule, it is not necessary that vesting should occur prior to the death of the person whose life measures the period; that if the vesting takes place at once, it is sufficient and that mere postponement of enjoyment does not preclude the immediate vesting of a future interest. With this principle we agree. In Shepard v. Union & New Haven Trust Co., 106 Conn. 627, 138 A. 809, 813, the court said: “If a construction is fairly open which will avoid turning a bequest into an illegal perpetuity and render the bequest valid and operative, the law favors it, and courts must prefer it.” The facts of the Shepard case are not sufficiently similar to those of the instant case to be used as authority or precedent herein. In the Shepard case there were express words of a definite devise—“a gift”. The instrument before us does not mention a gift that could or would vest immediately upon the death of Mabel B. Gump, but simply gives direction to the trustee to convey an interest on condition that the children or the issue of the children assume an obligation.

Assuming that the intent of the creator of the trust should be carried out if possible, and that whatever interest Mabel B. Gump may have held in the property at the time of her death vested immediately in the living children, or vested at the time of the deed of trust from the children to the bank in exchange for the conveyance, we are confronted with the fact that nothing more could be vested in the children than was held by Mabel B. Gump. The vesting in the children immediately without the payment of the loan or the giving of a security conveyance to the bank would have frustrated and vitiated decedent's primary purpose, namely, the payment of an indebtedness. All directive provisions of the instrument are contingent upon the payment of the original loan plus any amount expended by the bank as a part thereof. The children were to assume an obligation to pay the balance of the indebtedness, which, because of its uncertainty in amount due to the limitation of the payments to be made upon the debt, and the unlimited sum that might be appropriated to improvements, etc., could possibly result in delay of an absolute conveyance by the bank to the children and to their issue per stirpes to a period beyond the lives of persons in being at the time of the creation of the limitation or condition and beyond the allowable period from the date of the creation of the suspension, which would be a violation of the rule relating to restraints on alienation. Civ.Code, § 715.

If, as appears from the terms of the trust document, the trustor intended that the trust should, if necessary, continue into the lives of children born after its delivery to the trustee, and if it also appears, as we think it does, that there is a possibility that the suspension of the power of alienation could continue for a period in excess of the statutory period from the time of the creation of such power, the trust is rendered void from its inception and no title vested in the trustee under the living trust phase of the document that the bank could convey to the children. Sheean v. Michel, supra.

Respondents do not admit that the instrument violates either the rule against perpetuities or the rule against restraints on alienation. They contend that if this court holds against their interests in this respect, the rule of severability is applicable. Again upon the theory that the intent of the creator of the trust should if possible be carried out, an attempt may be made to separate “the good from the bad” (Estate of Troy, supra, 214 Cal. at page 64, 3 P.2d at page 930) and this has been accomplished notably in Nellis v. Rickard, 133 Cal. 617, 66 P. 32, 85 Am.St.Rep. 227, by separating a valid life estate from an invalid remainder. An estate may vest without violating the perpetuity rule, and the power of alienation still be suspended. The difficulty in this case arises from the fact that the trust document from its inception was invalid. The period of the trust was twenty years, which could be postponed for an indefinite period to pay the indefinite indebtedness. Considering the document solely from its living trust phase, it is possible that the absolute power of alienation could be suspended beyond the period of lives in being and also beyond the twenty-five year limit from the creation of the condition. Civ.Code, §§ 715, 749, 771; Sheean v. Michel, supra; Estate of McCray, supra. The invalid provisions of the agreement are so closely blended with those that may be valid as to make the latter ineffectual. The trustee would be acting as the trustee for the children or the children of the children in derogation of the rule considered herein without the right on the part of the children or perhaps the grandchildren or the great grandchildren of Mabel B. Gump to an absolute conveyance until the indebtedness should be paid.

Next, answering appellant's contention that the executors should have been charged with secret profits, the facts are that personal property was sold at public auction, under instructions, after petition duly filed and notice of the hearing given appellant. Subsequently a return of sale was filed and notice of the hearing thereon also given appellant. No objection to the petition or to the return of sale was presented. Objections and exceptions to the first and final account and report of the executors, however, were filed, covering the items, and at the hearing, regularly called, the objections were overruled, the court in its decree finding that the allegations contained in the objections were untrue and disallowing the same. The sale was confirmed prior to the filing of the objections, and no appeal was taken from the order of confirmation. Probate Code, § 1240.

With regard to the sale of said personal property, it was shown that at the time of the auction, S. & G. Gump Company, referred to as “Gumps”, was a corporation engaged in the business of the purchase and sale of curios, bric-a-brac, jewelry, works of art, etc.; and that one of the executors had a sizable interest in the stock of the corporation. At said sale, some of the articles were purchased by strangers or buyers independent of Gumps; others, by Robert Livingston Gump, one of the executors, under authorization of and for the corporation; still others, for the corporation, but without authorization; and some articles were purchased personally for himself or his family. In many instances the Gump corporation was overbid by other parties. In connection with the articles purchased by Gumps, the highest bid was accepted by the auctioneer. At the conclusion of the sale, articles purchased for Gumps were delivered to their store for resale. Some of these articles were subsequently resold at a profit and some still remained unsold at the time of the settlement of the account.

From the foregoing, it is possible that Robert Livingston Gump appeared in a triple capacity—as an authorized agent, an unauthorized agent, of the corporation, and personally. In each capacity separate individuality as a buyer and executor may have existed. An executor is not permitted to purchase property of an estate, directly or indirectly, or be interested in its purchase. Probate Code, § 583. The law assumes that official duty and personal interest are antithetical. Jones v. Hanna, 81 Cal. 507, 22 P. 883. It is not necessary on this appeal to differentiate these possible capacities. The objections to the decree set forth that the executors aided and abetted “Gumps” in the purchase of articles through a “certain dummy bidder”; that upon the resale of the property certain benefits inured to the executors. The legatee appellant prayed that the executors account for the property referred to, and that the court determine title as between the estate and the executors.

The contention of appellant is that a resulting trust existed on the part of the executors, interested in the Gump corporation, to account for any profit arising through the resale of the articles by the corporation. She seeks to present a direct attack upon the validity of a former order in the same court in the same proceeding. In fact, she endeavors to have reexamined the sufficiency of the facts to justify the order of confirmation of sale. The probate court would be called upon to approve or disapprove its former order. The petition for the sale and the petition to approve the sale admittedly recited sufficient jurisdictional facts. The order did not adjudge that any profit, legal or otherwise, should be retained by the executors. The order confirmed the sale and thereby vested the legal title in the respective purchasers. Probate Code, § 755.

Jurisdiction means not only authority over the general subject matter, but the power to make a particular order or decree. If the order is void on its face, or if the court does not have jurisdiction to make the same, it may be attacked collaterally. Texas Co. v. Bank of America etc. Ass'n, 5 Cal.2d 35, 53 P.2d 127. If the order is voidable, as where a judgment or order entered does not truly reflect the action of the court, the attack may be directed to the untruthfulness of the order, decree or judgment. The real point of objection here goes to the value of the property at an auction sale. The value of articles is not a jurisdictional question. Lucas v. Todd, 28 Cal. 182. The parties were not precluded from contesting the sufficiency of the facts to justify the order. The order of confirmation is not void upon its face and therefore is not subject to collateral attack. Wood v. Roach, 125 Cal.App. 631, 14 P.2d 170; Gerini v. Pacific Employers Inc. Co., 27 Cal.App.2d 52, 80 P.2d 499.

The decree has become final subject to annulment, reversal or modification by an appellate court. Security–First National Bank v. Superior Court, 1 Cal.2d 749, 37 P.2d 69. It is valid on its face. If the legatee seeks further relief upon the allegations set forth in the objections, sounding as they do in fraud, she should apply to a court of proper jurisdiction. In Campbell–Kawannanakoa v. Campbell, 152 Cal. 201, 208, 92 P. 184, 187, the court said: “This character of relief is very common in the matter of fraudulent probate proceedings. The order or decree from the effect of which relief is sought cannot constitute a bar to such equitable action. As has been said, it is solely because of the order or decree, collaterally unassailable and valid on its face, that the equitable jurisdiction is necessary and exists.”

The parcels of land should have been inventoried in the estate subject to whatever rights or interest may be held by the bank. Unless Marcella Gump indicates by appropriate procedure that she desires to have her rights and interest tested in another forum, the probate court may proceed in the ordinary manner. That part of the decree of distribution disallowing the objections to the sale of a personal property is sustained; and that part of the decree adjudging that the two pieces of real property should not be inventoried in the estate is reversed, with instructions to enter a decree in accordance with the views herein expressed, appellant to recover costs.

WARD, Justice.

We concur: PETERS, P.J.; GOODELL, Justice pro tem.