¶1I concur. I do so the more readily because I feel very strongly that respondent should not be allowed to play fast and loose with her opponents and the courts. After she had obtained the decree of partial distribution upon which she now seeks to rely as res judicata, she as executrix filed the petition for instructions which was ultimately carried to the Supreme Court and decided in Estate of Kearns, 36 Cal.2d 531 [225 P.2d 218]. In that petition and in all of the adversary proceedings, trial and appellate, in connection therewith the claim of res judicata was not once suggested. Now she asks us to hold that the whole procedure, in the trial and appellate courts, was a sham battle, because she had an ace up her sleeve which she refused to play on the first round of the game. Under the facts of this case I do not regard Estate of Wear, 20 Cal.2d 124 [124 P.2d 12] as controlling.
¶2A petition for a rehearing was denied January 28, 1955, and respondent’s petition for a hearing by the Supreme Court was denied February 24, 1955.