International People v. Lee Gow (Cal. App.). People v. Mirandi (Cal. App.). People v. Oubridge (Cal. App.). People v. Wademan (Cal. App.). Pitwood, Wheeler v. (Wash.). 289 Sheedy, Brown v. (Or).. 613 Placentia Nat. Bank v. Landsberg (Cal. Sherris v. Northern Pac. R. Co. (Mont.).. 269 Pollan, Guffey v. (Okl.). $17 Shuster, State v. (Or.)... 862 Silver v. Eakins (Mont.). 876 Presgrove, Underwood v. (Kan.). 380 Riordan v. Equitable Life Assur. Soc. of Soper v. Deal (Kan.). 396 Road Supply & Metal Co. v. Kansas Cas- ualty & Surety Co. (Kan.). 108 Robert v. Superior Court of Los Angeles Southern Pac. Co., Christman v. (Cal. App.) 808 453 Robertson, Plante v. (Okl.). 840 Southwestern Oil Co. v. Hendricks (Okl.) 922 Southwestern Oil Co. v. McDaniel (Okl.).. 920 347 Roullard v. Gray (Cal. App.) Ruby v. Warrior (Okl.). Ass'n of Credit Men v. (Or.). 479 Staats, Adjustment Bureau of Portland 847 Ryan, Rich v. (Wash.).. Ryzek, Lee v. (Wash.). .... St. Helens Lumber Co. v. Evans (Or.). 612 St. Louis & S. F. R. Co., Thorp v. (Okl.) 240 Salisbury v. Wichita R. & Light Co. (Kan.) 966 Salt Lake City v. Board of Education of 622 Standwaitie's Estate, In re (Okl.). State, Armstrong v. (Okl. Cr. App.). State, Arnold v. (Okl. Cr. App.).. State, Blumhoff v. (Okl. Cr. App.).. State, Boggess v. (Okl. Cr. App.). State, Boone v. (Okl. Cr. App.)..... 51 State, Brown v. (Okl. Cr. App.). State, Burton v. (Okl. Cr. App.). State, Bussey v. (Okl.).. State, Chicago, R. I. & P. R. Co. v. (Okl.) 199 Steere v. Formilli (Cal. App.). State, Childers v. (Okl. Cr. App.). State, Cotton v. (Okl. Cr. App.). State, Daggs v. (Okl. Cr. App.). 226 State Line Oil & Gas Co., Wyatt v. (Kan.) 596 806 842 Steinke, Clancy v. (Wash.). 59 Stephens v. Eugene (Or.)... 124 Stevens, Donovan v. (Cal.). 110 855 400 625 Stevens v. Evening Courier (Idaho). 551 Stevens v. Melville (Utah).. 942 Stevens v. Selvidge (Wash.). 989 Stevens, Thompson v. (Okl.). 964 602 294 742 State, Gragg v. (Okl.). 201 Superior Court of Santa Clara County, Beggs v. (Cal.)... 642 Sutcliffe, Stafford v. (Kr.). 981 Sutherland v. Fidelity & Casualty Co. of New York (Wash.). 942 Talbott, De Laval Dairy Supply Co. v. 946 (Cal. App.) 393 Talkington v. State (Okl. Cr. App.). 187 Swimmer v. State (Okl.Cr.App.)...... 554 83 132 842 Tanner, Ex parte (Cal.). 81 200 Temple v. State (Okl.Cr.App.) 555 27 Temple v. State (Okl. Cr. App.). 733 117 Thacker v. Smith (Kan.).. 983 State v. Howell (Wash.) 569 Thede, Mayo v. (Okl.).. 348 State, Hunter v. (Okl.).. 935 Thompson, Bettilyon Home Builders Co. (Idaho) 959 State v. Keech (Wash.). 176 Thompson v. Stevens (Okl.). 742 State, Keeter v. (Okl. Cr App.). 263 Thompson, Turnidge v. (Ór.)... 281 State, Kerriel v.. two cases (Okl. Cr. App.) 625 State v. Kidd (N. M.)... 772 Thorp v. St. Louis & S. F. R. Co. (Okl.).. Thorsen, Schmid v. (Or.).... 240 74 State, Kliensmith v. (Okl. Cr. App.). 943 Tinney, People v. (Cal. App.).. 17 Title Insurance & Trust Co., Whitaker v. State v. Kuhl (Nev.). 190 Todd, City of Mangum v. (Okl.). 197 State, Miller v. (Okl. Cr. App.).. State, Morgan v. (Okl. Cr. App.) State v. Park (Idaho)....... State, Ross v. (Okl. Cr. App.).. 625 727 139 Toronto Midway Oil Co., McCreary v. (Cal. App.)... 87 668 Torrey v. Campbell (Okl.). 524 641 Town of Sidney, Perkins v. (Wash.). 813 Trahey v. Allen (Wash.).. 301 30 514 Trammel, Mount v. (Okl.). 232 122 Transgard v. Atchison, T. & S. F. R. Co. 727 (N. M.)... 280 771 Treleaven, Kennedy v. (Kan.). 977 129 True, Bothe v. (Kan.). 395 568 Tulsa Hospital Ass'n v. Juby (Okl.) 978 Turnidge v. Thompson (Or.).... State v. Shuster (Or.).. 862 Twomey, Iowa State Sav. Bank v. (Idaho) 812 State v. Sinclair (Kan). 41 State, Slate v. (Okl. Cr. App.). THE PACIFIC REPORTER VOLUME 175 (178 Cal. 768) denying motion for new trial, plaintiffs ap HEYDENFELDT et al. v. OSMONT et al. peal. Affirmed. (S. F. 7954.) Edward E. Cothran, James G. Maguire and (Supreme Court of California. Sept. 3, 1918. R. P. Henshall, all of San Francisco, for apRehearing Denied Oct. 3, 1918.) 1. APPEAL AND ERROR 843(2)-REVIEWMATTERS NOT NECESSARY. The reviewing court need not concern itself with other findings, where fraud is essential to recovery, and the finding of its absence is supported by the evidence. 2. EXECUTORS AND ADMINISTRATORS 315(5) -DECREE OF DISTRIBUTION-OMNIBUS CLAUSE. Decree in terms distributing the residue known or hereafter known or discovered passes title to land omitted from particular description. 3. EXECUTORS AND ADMINISTRATORS ✪➡315(6) | -DISTRIBUTION-DECREE UNDER AGREE 5. TRUSTS FRAUD. 103(4)—ConstRUCTIVE TRUST There was no fraud against devisees, giving rise to a constructive trust, from the fact that, in the distribution of the estate, under a compromise agreement, under which there was decreed to an attorney, who had previously represented heirs given nothing by the will, the residue, known or hereafter known, such attorney failed to disclose his knowledge, acquired from papers in the executors' possession of lands belonging to the estate, but not listed. 6. TRUSTS 95 CONSTRUCTIVE TRUST-DECREE OF DISTRIBUTION-SUBSEQUENT ACTS, Where there was no fraud in defendants' procurement of a decree distributing to them the residue of an estate, there was no ground for the impressment of a trust in favor of plaintiffs because of subsequent concealment by defendants of their claim of title. pellants. Drown, Leicester & Drown, of San Francisco, for respondents. MELVIN, J. Plaintiffs, who are appellants here, began this action in equity in which they prayed for a judgment declaring | that defendants hold only the bare legal title to five parcels of real property in the city and county of San Francisco. Plaintiffs also asked for judgment that defendants have no right, title, or interest in the property, and they prayed also for general equitable relief. The appeal is from the judgment and from an order denying the motion of plaintiffs for a new trial. The basis of this litigation is the same fraud on the part of the predecessor of defendants which these plaintiffs sought unsuc cessfully to set up in their petition to vacate the judgment in a suit quieting the title of the successors of Thomas M. Osmont to this very property. Osmont v. All Persons, 165 Cal. 587, 133 Pac. 480. Although many of the allegations contained in the complaint in this case are essentially the same as those pleaded in the petition considered by this court on the appeal in the case cited above, it may be well to outline briefly the circumstances leading to this litigation. The controversy in this action involves only the fee-simple title to the reversion in certain "city slip lots" following the expiration of the grant from the state of California to the use and occupation of the property for 99 years after March 26, 1851. The record reveals the following facts: Solomon Heydenfeldt died testate in 1890, owning at the time of his death the fee-simple title to the land here in controversy, subject to the grant above specified. His will contained a residuary clause, devising and bequeathing to his Department 2. Appeal from Superior wife, Elizabeth A. Heydenfeldt, a life estate Court, City and County of San Francisco; in all property not otherwise disposed of, Geo. E. Crothers, Judge. with remainder over to her children (the othAction by Elizabeth A. Heydenfeldt ander plaintiffs herein), said property to be disothers against Augusta C. Osmont and oth-tributed to them share and share alike at the From an adverse judgment and order death of their mother unless by her will she ers. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes mont's life, but was placed of record 15 days after his death, and subsequently these defendants received by distribution all interest in the land which he had possessed at the time of his death. The date of Mr. Osmont's death was December 20, 1905. The decree of distribution in the Estate of Osmont, made on or about March 8, 1907, did not in terms declare that the fee in this real property was derived from the estate of should make a different and unequal distri- | the decree in the Heydenfeldt estate. This bution. Litigation arose over the estate, instrument was not recorded during Mr. Osand was in progress for a number of years. In it Thomas M. Osmont, Esq., an attorney and counselor at law, represented Thomas O. Heydenfeldt and Zeila O. Hellings, who were children and heirs (but not devisees or legatees) of Solomon Heydenfeldt, deceased. In 1901 a compromise agreement was made whereby the devisees, legatees, heirs at law, and others who had claims against some of them bound themselves to abide by a certain settlement and adjustment of all litigation | Heydenfeldt. In August, 1907, the persons and of their respective shares of the estate. This agreement contemplated the filing of a petition for final distribution in the Estate of Heydenfeldt, praying for division of all the property in accordance with the terms of said contract. One of the claims against Mr. Osmont's former clients was for fees. This was made, however, by his assignee, G. H. Mangels, who was his clerk. In the compromise and the negotiations and court proceedings connected therewith Mr. Osmont appeared as attorney for said Mangels. It is cheerfully conceded by appellants that: "At all times pending the administration and settlement of the estate of Solomon Heydenfeldt, deceased, and at the time of the execution of said compromise agreement and of the making of the decree of distribution of said estate, all the attorneys of all the parties were in a position to ascertain the right, title, and interest of Solomon Heydenfeldt, deceased, as disclosed by the public records." It is asserted, however, that as Mr. Osmont had in his possession the original deeds by which Solomon Heydenfeldt gave title to the property, it was his duty to disclose the information to the other parties to the compromise agreement. Neither in that contract nor in the inventory in the estate, nor in the decree of final distribution was this who are here defendants began a "McEnerney action" to quiet their title to this property. They obtained a Judgment and a decree, which was placed of record March 1, 1910. On September 16th of the same year the persons who are here plaintiffs moved to set aside the judgment with the result which appears in Osmont v. All Persons, supra. The present action was commenced in August, 1912, while the appeal in that case was pending and undetermined. It was the theory of the counsel for appellants that one of the elements of Mr. Osmont's alleged fraud was his failure to disclose all knowledge which he possessed regarding the title of Heydenfeldt to the lands here involved. In that behalf it was alleged in the complaint that after the execution of the compromise agreement the decree of distribution was prepared by the attorneys for all of the interested parties acting in common accord and not in hostility one to another. this contention. While Mr. Osmont had apThe court correctly found against peared for some of the claimants to shares of the estate of Heydenfeldt, he had ceased so to represent them, had been endeavoring to collect his fee, and the compromise agree property described, but to Mangels was dis-ment, drawn and executed at a time when tributed all the rest and residue of the estate, "real, personal and mixed, of whatever kind or nature, and wherever situated, now known or hereafter known or discovered." This language followed the provision of the agreement of compromise, except that the last seven words of the decree are not in the other instrument, and one of the contentions of counsel for appellants is that Mr. Osmont, who approved the decree before it was signed, fraudulently sought to make it cover property not included in the contemplation of the other contracting parties, nor, indeed, in the terms of the agreement itself. The lower court in this case found that when the decree of distribution was made no one court distribute the estate in accordance with advice, was made partly in settlement of that his former clients were having independent very controversy. In a sense, it is true that after the compromise was made the attorneys acted in concert in their efforts to have the the agreement, but that does not mean that any one of them was bound to disclose anyterms or its clear intendment, call upon him thing which the contract did not, by its very to divulge. They were still acting at arm's length, each interested in getting the share allotted to him or his clients, and only concerned about the success of the whole enterprise because distribution according to the terms of the compromise was the agreed of these plaintiffs, nor any of their attorneys, method by which that share might be promptpersonally and actually knew that said really secured. There was no confidential relaproperty was a part of the estate of Solo- tion between Mr. Osmont and the other atmon Heydenfeldt, but that Mr. Osmont did torneys or their clients which would require have knowledge of that fact. On August 27, him to say to them or any one of them that 1903, Mangels executed a deed conveying his he had knowledge not possessed by them reinterest in this property to Thomas M. Os-garding the residuum of the estate. mont, but the deed did not contain any decla [1] In this case appellants are confronted |