Upon the former hearing in this case, in Department One, the principal, and indeed the sole, argument of appellant was addressed to the proposition that, as the trust fund was not earmarked, plaintiff was relegated to the position of a general creditor of the estate, who should have presented his claim with other creditors, and that having *Page 636 failed so to do, the judgment should be reversed. It was to this contention that the opinion of the court in department was addressed. Upon petition for rehearing new points were presented, to which the attention of this court was invited, and it was urged that, owing to the failing health and serious illness of the administrator, himself an attorney, and the attorney who then prosecuted the appeal, the interests of the estate of Elizalde had not been preserved, and that therefore a rehearing should be permitted and the case considered anew. The rehearing was accordingly ordered.
A re-examination of the question considered upon the former hearing serves but to confirm us in the conviction that the views there expressed, and the determination reached, are sound, and that opinion is therefore adopted and affirmed. Addressing ourselves to the new questions urged upon appeal, it may be said that under the evidence it does not lie in the appellant's mouth to dispute the receipt by her intestate of the thousand dollars. The fund was left in trust for the care and support of the incompetent son of Maria Elizalde. Marcos Elizalde acknowledged the receipt of this money in writing, as follows: "We, M.A. Elizalde and J.J. Elizalde, hereby acknowledge that we have this day received for the benefit of Francisco Elizalde the sum of one thousand dollars gold coin, being the amount devised by the will of said deceased to Francisco Elizalde, as expressed in article 5th of said will. (Signed) M.A. Elizalde, J.J. Elizalde, Executors of the will of Maria Ygnacia Elizalde, and as guardians of Francisco Elizalde." "A voluntary trust is created, as to the trustee, by any words or acts of his indicating, with reasonable certainty, his acceptance of the trust, or his acknowledgment, made upon sufficient consideration, of its existence, and the subject, purpose, and beneficiary of the trust." (Civ. Code, sec. 2222) Here is a sufficient acknowledgment of the trust, with specific reference to the will of the mother, from which the terms of the trust can be ascertained. It matters not whether in fact one thousand dollars in gold coin came into the hands of these executors under the trust, or whether, for their convenience in the settlement of the estate, they took other real and personal property without converting enough of it into gold coin to comply strictly with the provisions of the will. They either *Page 637 took the gold coin or its equivalent, and if for any of the purposes of the trust it be necessary or desirable to hold that it was gold coin, their own declaration and acknowledgment will estop them and their successors in interest from disputing the fact. Moreover, it appears that up to the time of his death Marcos Elizalde repeatedly acknowledged that he held this fund in trust for the respondent's benefit, and that his brother, the co-executor, never had anything to do with its custody or management.
Appellant further insists that the complaint fails to state a cause of action, because the judgment whereby the will of Maria Ygnacia Elizalde was admitted to probate is not pleaded. But it was unnecessary to plead that decree. He shows enough when he establishes, as he does, the acknowledgment of Marcos Elizalde that he has received money from the estate of his mother upon a trust specified in her will.
It is urged further that the complaint does not plead the issuance of letters of guardianship to the guardian of the incompetent plaintiff herein. The allegation of the complaint is: "That on said fourth day of June, 1892, the said superior court, by its order duly given and made, appointed said C.A. Thompson as guardian of the plaintiff, with the usual powers, and thereafter and on the sixth day of June, 1892, the said C.A. Thompson duly qualified as such guardian." In Whyler v. Van Tiger, 14 Pac. Rep. 846, this court held that where a mother was appointed guardian of the person and estate of her minor son, and on the same day presented her bond, which was approved, a lease made by her of the ward's property on the following day was valid, though no letters of guardianship had been issued to her, and she had not taken the oath of office. That case goes much further than is necessary for the present consideration. It is at least pleaded that he duly qualified. Reversals for lack of formal allegations that might have been supplied by amendment are not favored after trial on the merits. (Cushing v. Pires, 124 Cal. 663.) And where a necessary averment has been only inferentially pleaded, it will be held sufficient after judgment and in the absence of demurrer.
The trial court erred in allowing interest upon the trust fund from the date of the acknowledgment of its reception by Marcos Elizalde. It was undoubtedly the duty of Marcos *Page 638 to have invested the trust money received by him, and for his willful or negligent omission so to do he is chargeable with interest. (Civ. Code, secs. 2261, 2262.) It is also true that upon the death of Marcos the trust devolved upon his personal representative. (Tyler v. Mayre, 95 Cal. 160.) "In the United States the heirs or executors will take the trust property, and they must settle the accounts of the testator in relation to the trust. They must also see that the property is protected and preserved." (Perry on Trusts, 4th ed., sec. 344.) But while it thus becomes the duty of the personal representative to preserve the trust funds in common with the other funds which have come into his possession, still he is in a sense an involuntary trustee upon whom the burden is cast, and is excepted by section 2250 of the Civil Code from the obligation of investing these funds, an obligation which is cast upon the voluntary trustee.(Estate of Marre, 127 Cal. 132.) The reason is plain. It may often happen that an executor or other person representative takes possession of funds which may be proved to be trust funds without any knowledge that such is the fact. Not knowing the fact, it would be his duty to resist, on behalf of the heirs, legatees, and creditors of the estate, any attempt to deprive it of a part of its assets, and in the event of his failure it would be in the last degree inequitable to hold him accountable for interest upon trust funds which he believed to be part of the estate his duty called upon him to administer. But in the case at bar plaintiff lays claim to the specific sum of one thousand dollars, earmarked so as to be identified and proven to have been turned over with the assets of the estate to the administrator Graves, now deceased. For the recovery of this specific sum of money plaintiff has had judgment. If the estate of Marcos, however, is indebted to him in any further sum for interest, by reason of the negligent failure or refusal to invest the corpus of the trust, his right to a recovery for this additional amount could only follow and be based upon the presentation of a proper claim for it against Elizalde's estate. Interest, therefore, should not have been allowed.
In the original action Ernest Graves was sued as administrator, and the judgment rendered provided that the money should be paid "in due course of administration." It seems *Page 639 to have been contemplated by the judge that no personal responsibility rested upon Graves for the payment of the money, and that he had received and was holding it in the belief that it was a part of the assets of the estate of Elizalde. Respondent is not complaining of the form of the judgment, nor, so far as the rights of Ernest Graves are concerned, can we perceive how he suffers injury under it. Respondent might have been heard to insist that the money identified as the trust fund should be paid over to him forthwith, without waiting the delay of administration and the chances of the estate's insolvency. With the death of Ernest Graves, however, and the substitution of Eliza P. Elizalde as administratrix of the estate of Marcos Elizalde, and as appellant here, the situation has become complicated. There is nothing in the record now before us to show that Eliza P. Elizalde has ever come into the control of the trust fund, or is in any way responsible therefor, and the affirmance of the judgment with the indicated modifications under these circumstances might prove barren of results to respondent. The judgment must therefore be reversed, to the end that the trial court, upon proper pleadings, and with the necessary parties before it, may enter the proper judgment in the premises, and that judgment should be for the amount of the trust fund without interest.
It is ordered accordingly.
McFarland, J., Harrison, J., Van Dyke, J., and Garoutte, J., concurred.
Temple, J., dissented.
The following is the opinion rendered on the former hearing in Department One, October 11, 1901: —