I concur in the judgment of reversal, but I fear that the directions as to the further proceedings in the case will lead to unnecessary complications and delays in the settlement of a controversy which, in the interest of all parties concerned, ought to be simply adjusted and speedily concluded. The directions to which I refer are based upon certain findings of the superior court upon matters wholly foreign to the case presented by the pleadings.
The substance of Mr. Hearst's answer is a statement of the amount received by him in response to his appeal for subscriptions to a relief fund, followed by these allegations: that he referred the question of a proper division and disposition of the fund to a committee composed of Mayor Phelan, Chief of Police Crowley, and Chief of Fire Department Sullivan; that they advised him to divide the fund into three equal portions, — to pay one portion to the adult dependents of Fireman Keller, and to deposit the remaining two thirds with a trust company, in trust, to be paid, one third to the infant sons of John Moholy on their coming of age, and the remaining third to this plaintiff upon his coming of age, and in case of the death of either of them before attaining his majority, the share allotted to him to be paid to the San Francisco Fire Department Charitable Fund Association; that he had adopted these recommendations as in every respect fair, equitable, and just; that he had paid over the one third, as recommended, to the representatives of Keller, and was only prevented by this litigation from depositing the other two thirds with a trust company, as in the award provided. There was no intimation in his answer that he had resigned his trust, or that he had any desire to devolve its *Page 652 execution upon Messrs. Phelan, Crowley, and Sullivan, or any other person. The only question he presented for the decision of the court was as to the conditions of the trust under which he held the money, and his only desire was to discharge himself of the obligations he had assumed by disposing of the fund in controversy in such manner as might be authorized by the judgment of the court, and such as would relieve him of further responsibility. The finding of the court, therefore, to the effect that Mr. Hearst has turned over the money to Messrs. Phelan, Crowley, and Sullivan, and has attempted to devolve his trust upon them, is not only outside of the issues, but is inconsistent with the answer. If it is true that plaintiff's share is still under the control of Mr. Hearst, the fact is important, as bearing upon the further proceedings in the case, for it dispenses with the necessity of bringing in new parties, and avoids the inevitable delays incident to that procedure. Unless Mr. Hearst desires to amend his answer by showing that the fund has passed beyond his control, or by setting up some other fact essential to a proper and final decision of the case, there is no reason why a decree may not be entered upon the pleadings as they stand.
It is now held — and in that view I entirely concur — that the recommendation of the committee that plaintiff's share of the fund be deposited with a trust company, to be kept intact until his majority, was a mistake, because at variance with the intention of the donors and the purposes of the trust. The trustee of the fund, it is held, must apply it, so far as necessary, to the support of the plaintiff during his minority, — that is to say, it must be devoted primarily to the provision of food, clothes, and other necessaries. Such being the nature of the trust, all the parties necessary to a proper disposition of the case are now before the court. I assume from the statements of counsel as to the non-residence of Mr. Hearst, that he cannot possibly undertake personally the duty of looking after the daily wants of this minor, and that he will desire to resign his trust in favor of some other trustee. If so, a very simple amendment to his answer will serve every purpose, and if there is no reason to suspect the competency or integrity of plaintiff's general guardian, — of which there is no suggestion in this record, — I think it would be the plain duty of the court, as the case stands, to appoint him, not because he has any strict legal right, as guardian, to the custody of this fund, but because plaintiff, as the *Page 653 beneficiary of the fund, having a right to ask for a trustee able and willing to discharge the trust, has, in effect, asked for the appointment of his general guardian, and because no one else able and willing to act has been proposed. In saying that the plaintiff has, in effect, asked for the appointment of his general guardian, I mean this: he asks a judgment for his share of the fund, and a judgment in his favor would be executed by turning the money over to his general guardian, who would hold it, under the law, upon a trust precisely the same as that upon which the defendant holds it, — a trust, that is to say, to use it for the support of the plaintiff during his minority, the surplus, if any, to be paid to him on his coming of age.
I do not concur in the view intimated in the opinion of Justice Henshaw, that the Moholy minors have any contingent interest in the fund here in controversy. I think the intention of the committee and of Mr. Hearst, in the division they made of the fund, partly executed as it was by payment of one share, was to sever the interests completely, and not to leave it open to the Moholy minors to question the disposition made of plaintiff's share, or to plaintiff to demand an accounting of the shares of the Moholys. A final and complete division among the several beneficiaries was not, in my opinion, at variance with the intentions of the donors of the fund, but, on the contrary, was the most equitable and judicious arrangement that could have been made. The views of the court, however, upon this point, as upon all others, must prevail, and if these various contingent interests exist (of the Moholy minors in plaintiff's share, and of plaintiff in their shares, and of the Fire Department Charitable Fund Association in all the shares), it would seem to be necessary to have one trustee, or set of trustees, of the whole fund, charged with the duty of looking after the needs of all the minors and preserving the interest of each in the shares of the others. It would also seem to be necessary to have all the parties before the court before a decree could be made defining the trust and prescribing the duties of the trustee. I think it unfortunate that this should be held necesssary. It would certainly be a simpler and happier solution of the matter to hold the interests to be entirely distinct, and to intrust the respective shares of the minors to their several *Page 654 guardians, who, in performing the duties imposed upon them by law, would exactly fulfill the purposes of this trust. And not only would this be the best rule for the present case, but it would make a good precedent for future cases. When a subscription is taken up for the relief of a number of persons — adults and minors — suddenly left in danger of privation by the death of those to whom they have looked for support, the fund ought to be made immediately available for the purpose of relief. The persons charged with the distribution of the fund ought to be at liberty to make a final division among the several beneficiaries, and they ought to be assured that they will be deemed to have discharged their trust fully and completely and beyond the reach of future question by payment of the shares allotted to minor beneficiaries to their respective guardians.