Elizalde v. Elizalde

HENSHAW, J.

Upon the former hearing in this ease, 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 hav

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ing 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 Ygnaeia 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 wall 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