¶1(dissenting in part) — The evidence in this case presents a very close question as to who did wrong. The crux of the matter seems to be whether respondent, the second wife of the deceased John Fenton Whitmore, knew that Betty Whitmore Francon, appellant, was the daughter of the deceased. Appellant’s testimony does not appear to establish this fact too clearly. Respecting her one meeting with appellant, respondent testified that she was introduced to Betty Whitmore Francon by John Fenton Whit-more; that when he introduced Betty Whitmore Francon as his daughter, he winked at respondent. Respondent further testified that she did not remember specifically just what was said at the time of the introduction, but that appellant was introduced as John Fenton Whitmore’s daughter, and that the winking occurred in connection with the introduction. Appellant’s testimony was that she did not remember just exactly what her father had said at the time of the introduction, but that he had made it obvious that she was his daughter, and that in further conversation he had referred to appellant’s child as “my grandchild.”
¶2The majority opinion concludes — largely from the foregoing resumé of testimony — that during the time she was administratrix of the estate of John Fenton Whitmore, deceased, respondent knew that appellant was the daughter *542of the deceased. Based upon this conclusion, the majority-hold respondent blameworthy to a degree constituting extrinsic fraud. .
¶3The fact is not emphasized too greatly by the majority, but it appears that within fifteen minutes after the death of décedent, respondent notified a brother and four sisters of decedent in Salt Lake City, by telephone. This could be characterized as one thing to respondent’s credit. Appellant apparently learned of her father’s death through her uncle and aunts and as a direct result of respondent’s telephone call. Appellant, was unable to attend the funeral in Seattle. She seems to have learned of the estate proceedings in the fall of 1945, but did nothing about the matter until she consulted an attorney in 1948, and the present suit quickly developed. It could be said that appellant was not exactly “on her toes,” so to speak, with respect to her rights, and that some blameworthiness might possibly be inferred from her lack of diligence.
¶4Reminiscent of the struggle between Lord Coke and the Chancellor, it could be said that this proceeding sounds in equity. It is my view that both of the contending parties were more or less at fault. I cannot agree that respondent was so greatly at fault that she should be penalized to the extent indicated by the majority opinion. Technically, it may be said that the majority opinion does not set aside or revise the final decree of the probate court. Realistically, the majority opinion is a revision of the final decree of the probate court. Bluntly stated, that decree — or at least the end result thereof — partially is set aside. The property or proceeds of the estate in the hands of respondent are impressed with a trust for the use and benefit of appellant to a degree or extent that the court is willing to recognize the belated heirship claims of appellant. It is safe to say that is a recognition of appellant’s interests or claims, and is in conflict with the final decree of the probate court, although not one word is deleted, and no interlineation is inserted physically in the final probate decree by amendment or further order of the court.
¶5*543: Respondent has' advanced estoppel as an affirmative defense, mentioning appellant’s - lack of diligence, and pinpointing respondent’s right to claim family allowance and homestead interests-.,in the estate.
¶6On the assumption that this is a proceeding in equity, it would appear more equitable to me to recognize appellant’s rights or interests in the estate of her deceased father which were precluded by the blameworthiness of respondent; and at the same time to recognize the rights or interests of the respondent to which she would have been entitled if appellant had been a party to the probate proceedings. In other words, it would seem to me that it would be more -equitable for this court to give recognition on this appeal to the rights and interests of not just one side or the other— but to both contending parties as the same existed when the estate was probated. Technically, that result could be reached by recognizing the claims and rights of appellant not inconsistent with those of respondent at the time the estate was probated. The theory of a constructive trust need not necessarily be applied in a manner to deny the family allowance and homestead interests of respondent.
¶7• The majority takes the position that family allowance and homestead interests are created by statute and that respondent has not followed the statute to confer legal recognition on her claims to family allowance and homestead interests. The theory is intriguing, but not irrevocably convincing. In fact, the majority’s theory on this point could be applied adversely with respect to appellant. Certainly, appellant’s rights as an heir are statutory. She has not followed the statutory procedure to confer recognition upon those rights or to prevent foreclosure of those rights through the operation of the statute of limitations or the •statute of repose feature of the probate legislation of this state.
¶8If it is objectionable for technical procedural reasons to give positive recognition directly to respondent’s claims to family allowance and homestead, the same result could be accomplished merely by limiting the degree or extent of the recognition given to appellant’s claims, remembering *544the interests and claims of respondent in the matter, and keeping in mind that we are functioning along equitable principles in attempting to provide relief to appellant. Pursuant to the majority opinion, the trial court, through a further hearing, appointment of a commissioner, or upon stipulation of the parties, must ascertain facts as to the rental value of the real estate in order that appellant’s specific interest therein may be determined. In the same manner, the trial court could discover and determine whether the respondent’s claims or interests in family allowance and homestead are valid, the extent or degree, or monetary equivalent or value of the same, as of the time of the probate proceedings. The constructive trust could be tailored accordingly.
¶9As mentioned heretofore, the affirmative defense of estoppel in respondent’s answer to appellant’s complaint seems to me to have raised the issue of family allowance and homestead. The principle is well recognized that equity will do that which should be done. We find extrinsic fraud attributable to respondent, and apply the equitable doctrine of constructive trusteeship for the use and benefit of appellant. This is to correct an injustice which we believe has been done to her. I cannot agree that in correcting one injustice through application of principles of equity, we should foster what appears to me to be a harsh and unjust result respecting respondent, particularly when a more just result appears properly possible through what, to me, seems to be merely a closer adherence to basic principles of equity and simple, straightforward justice.
¶10In view of the foregoing, I concur in the result of the majority opinion recognizing in effect appellant’s heirship claims; but it is my conviction that recognition also should be given to respondent’s claims or interests respecting family allowance and homestead, as suggested herein. I disagree with the majority views on the latter point.