Under a decree of distribution in the estate of Maria Ygnacia Elizalde, made February 23, 1882, Marcos Elizalde received the sum of one thousand dollars, to be held in trust for the use and benefit of the plaintiff herein, and gave a written acknowledgment of the receipt of the same. He died November 30, 1891, and a document purporting to be his last will and testament was admitted to *Page 640 probate and an executor thereof appointed January 30, 1892. The order admitting the will to probate was afterwards vacated and annulled, and the defendant herein was appointed administrator of the estate of said deceased. The present action is brought to recover from the defendant the one thousand dollars held in trust by his intestate. The court found that the deceased received the said sum of money in trust, as aforesaid, and continued to hold the same in trust for the plaintiff until his death; that the executor of his will received from his estate funds charged with said trust, greater in amount than sufficient to pay the same; that upon the annullment of the will said executor turned over the same to the defendant herein, and that the defendant still holds the same. Judgment was rendered in favor of the plaintiff, and the defendant has appealed therefrom and from an order denying a new trial.
At the trial the written acknowledgment in 1882 by the deceased of the receipt of the money was offered in evidence, and also testimony that about a year before his death he had stated to the witness that he had received a thousand dollars for the plaintiff from his mother's estate, and then had the same in his possession. Thompson, who was the executor appointed under the will, testified that, as executor, he had received a thousand dollars held in trust by the decedent for the plaintiff. It was also shown by the final account of the executor that the sum of $13,500 had come into his hands in cash from said estate, and that this amount included the sum of one thousand dollars to be paid to the guardian of the plaintiff. In the decree settling this account the executor was directed to pay this thousand dollars to the administrator, "without prejudice to the right of the guardian to take any lawful means for the collection of said sum." It also appeared from the first account filed by the defendant, as administrator of the deceased, that he had received the amount so directed to be paid to him by the executor. No evidence controverting any portion of the testimony above given was offered in behalf of the defendant, and the evidence before the court fully justified it in making the above findings.
It is, however, contended on behalf of the appellant that unless the plaintiff could identify the specific trust fund *Page 641 held by the deceased from the general assets of his estate, he can assert only the claim of a creditor, for which he must present his claim for allowance against the estate, and that such identification was not made. In Lathrop v. Bampton, 31 Cal. 17, it was said: "The identity of a trust fund consisting of money may be preserved so long as it may be followed and distinguished from all other funds, not by identifying the individual pieces or coins, but by showing a separate and independent fund or value, readily distinguishable from all other funds." And again: "If at the time of his death the defendant's testator was in the possession of the trust fund, or other property into which he may have converted it, and such fund or other property had come into the possession of the defendant, he would have held it upon the same terms as his testator held it." This does not mean that the trust fund is to be kept as a separate and independent fund, or in a special account from all other funds of the trustee. In Lewin on Trusts, *894, it is said, in reference to the mingling by the trustee of trust funds with his own: "It may be said that the trust money has, like water, run into the general mass, and become amalgamated, and therefore the cestui que trust has no lien. But clearly this cannot be maintained. . . . Though the identical pieces of coin cannot be ascertain, yet, as there is so much belonging to the trust in the general heap, the cestui quetrust is entitled to take so much out." And again: "If a trustee pay trust money into a bank to the account of himself, not in any way earmarked with the trust, and also keep private moneys of his own to the same account, the court will disentangle the account and separate the trust from the private moneys, and award the former specifically to the cestui que trust." If the trustee, after so mingling the funds, has drawn therefrom from time to time, it will be presumed that the moneys so drawn were from his own portion of the fund, rather than from the moneys held by him in trust. (In re Hallett's Estate, L.R. 13 Ch. Div. 696; NationalBank v. Insurance Co., 104 U.S. 54; Lewin on Trusts, *895.) So long as the amount in the fund is greater than the amount of the trust fund it will, in the absence of any showing to the contrary, be presumed to be that held in trust. Whether the moneys are mingled in one account at *Page 642 a bank or kept together in the strong box of the trustee is immaterial.
The presentation of a claim against the estate was not required in order to maintain an action to recover property held in trust by the decedent. It is only where payment of a claim is sought out of the assets of the decedent's estate that such presentation is necessary. But property held by the decedent in trust is not a part of his estate, and cannot be applied in satisfaction of his debts, or form a portion of his estate to be distributed to his heirs. (Theller v. Such, 57 Cal. 447; Roach v. Caraffa,85 Cal. 436; Byrne v. McGrath, 130 Cal. 316.1)
The judgment and order are affirmed.
Garoutte, J., and Van Dyke, J., concurred.
1 80 Am. St. Rep. 127.