A judgment in favor of plaintiffs against defendant as administrator of the estate of Jacob K. Gries, decreeing that said administrator should invest $1,000 in his hands and transfer the security to San Buena Ventura Lodge, Free and Accepted Masons, under a contract that of the income of such $1,000 so much as necessary should be used in the maintenance of a burial lot in which is interred the remains of Mrs. Mary S. Gries. From an order denying a new trial defendant appeals, upon a bill of exceptions.
The case is this: Ventura Lodge, Free and Accepted Masons, is an unincorporated association, found by the court to have been organized for charitable purposes, and since its organization has been collecting and disbursing large sums by way of charity, and no money received by it can be properly expended otherwise than for expenses of the association and for charitable purposes. This association contains about eighty-five members. Mrs. Gries, by her last will, devised to her husband, Jacob K. Gries, certain real estate and requested him that, out of the rents, issues and profits thereof, to invest $1,000 in some satisfactory security and transfer the same to the association above named, under a contract that so much of the income or principal as may be necessary shall be used by said association for the care, repair and maintenance of the burial lot in Springville cemetery, in which the remains of testatrix should be interferred. That after the death of Mrs. Gries, and in due course of the administration of her estate by the decree of distribution regularly entered, after notice, on January 5, 1897, there was distributed by the court to this association $1,000, to be paid out of the rents, issues and profits of the life estate of said Jacob K. Gries, and to be by him invested in a satisfactory security, to be transferred to said association upon the trusts and uses in said will provided. Thereupon, said association appointed plaintiffs trustees to take and receive such transfer of security for said association. That at all times, after the 1st of January, 1898, and until his death, the said Jacob K. *Page 743 Gries kept segregated and in his hands, out of the proper funds, said sum of $1,000. That in 1903 said Jacob K. Gries died, so having such funds separated from his other estate; and after his death said funds in due course came into the hands of Foster, as administrator, and the same has at all times remained in his hands. That a claim was presented, more than ten months after the publication of notice to creditors, to defendant as administrator of the estate of Jacob K. Gries, by plaintiffs in their own behalf, and in behalf of the other members of the association, which claim was rejected. Plaintiffs bring this action thereon, by way of an amended and supplemental complaint — the original action having been brought against Jacob K. Gries in his lifetime, and in which action not only the amount here involved was sought to be recovered, but certain specified real property.
The first contention of appellant is that the presentation of the claim to defendant within the time required by law was a condition precedent to the right to maintain this action. We are of opinion that, under the facts of this case, the presentation of a claim was unnecessary. Whatever may have been the rights of Jacob K. Gries under the will, the decree of distribution became the law of the estate. The court having jurisdiction, construed the trust created by the will, and that judgment and decree is final and conclusive upon all parties then before the court. (Toland v. Earl, 129 Cal. 152, [79 Am. St. Rep. 100, 61 P. 914].) Gries, in obedience to such decree, segregated the sum ordered to be invested, and held the same in that manner, presumably in obedience to the decree, and presumably with the intent to transfer the funds whenever other questions which he was litigating were eliminated. These acts signified with reasonable certainty Gries' acceptance of the trust which was imposed upon him by the decree to invest and transfer. (Civ. Code, sec. 2222) The fund having been by him segregated, the investment was sufficiently earmarked so as to be identified, and proven to have been turned over with the assets of the estate to the administrator. (Elizalde v. Elizalde, 137 Cal. 638, [66 P. 369, 70 P. 861].) It is only where payment of a claim is sought out of the assets of decedent's estate that such presentation is necessary. (Elizalde v. Elizalde, supra. *Page 744
The sufficiency of the evidence to support the findings Of the court as to the charitable character of the association is next challenged. Competent evidence appears in the record to show that the association was formed for certain purposes of charity and society, and holds its funds in trust for these purposes and none other; that the lodge funds are sacred to the purposes of charity and shall not be used for any other purpose. This evidence is sufficient to support the finding last referred to.
The competency of the lodge to receive this bequest is next challenged. We have nothing to do upon this appeal with the bequest, its nature or purpose. We are dealing only with the judgment of a court of competent jurisdiction, which has distributed to the association certain personal property, upon the use and trust in such decree of distribution specified. It will be presumed in support of such judgment that the distributee has power to accept and was a person competent to act as trustee. Were the rule otherwise, bodies such as this association before the court have been held so far under the control of a court of equity that they may be compelled to execute the duties of the trust, and can be dealt with for a breach thereof. (Estate of Winchester,133 Cal. 274, [65 P. 475].) There being then before the court a distributee, and decree of distribution having become final, we may not now by indirection inquire into the validity of such judgment or decree, or the evidence offered and received in its support. There is evidence in the record to support a finding that Jacob K. Gries had this money in his possession, segregated and ready for payment. There is evidence that at one time before his death, to wit, in the early part of 1898, he had the same invested in proper securities, as by the decree directed, and tendered the same to the association, exacting, however, certain conditions before the transfer not consistent with the decree of distribution. This investment once proven to exist will be presumed to continue as long as usual with things of that nature. (Code Civ. Proc., sec. 1963, subd. 32.) The nature of the investment ordered was permanent, and investments of this character are shown to have come into the hands of the administrator after the decease of Gries. All of this tends to establish the findings of the court as to Gries' acceptance of the trust, the partial performance *Page 745 thereof, and the receipt by the administrator of a trust fund ear-marked so as to be identified, and proven to have been turned over with the assets of the estate to the defendant, as administrator. A trust having devolved upon Gries in his lifetime by the decree, and his acceptance thereof established by acts performed by him, upon his death the trust devolved upon his personal representatives. (Tyler v. Mayre, 95 Cal. 160, [27 P. 160, 30 P. 196].)
We are of opinion that the judgment and decree of the court in this case, directing the transfer of the securities to the association as distributee under the decree of distribution, was warranted.
There being no error apparent in the record, the order is affirmed.
Gray, P. J., concurred.