Byrne v. B. McGrath
Before: THE COURT.
Synopsis
Estates of Deceased Persons—Trust Fund—Identity—Presentation of Claim.—Where a trust fund held by a deceased person is susceptible of identification, the trust may be enforced without the presentation of a claim against the estate; and it is only where the trust fund cannot be identified that the presentation of a claim against the estate, within the time limited by law, is essential.
Id.—Trust Fund Created by Will—Investment in Drug Business— Identification of Fund—Finding Against Evidence.—In an action to enforce a trust against the estate of a deceased husband, created under the will of his deceased wife, for the support, maintenance, and education of their children, evidence showing that he received two thousand five hundred dollars from her estate as trustee thereof, and added thereto five hundred dollars intended as an advance for the children, and invested the whole in a drug store and business, which he conducted until his death, sufficiently establishes the identification of the trust fund, and a finding that neither the property purchased nor the proceeds thereof were traced and‘identified as constituting the trust fund is against the evidence.
Id.—Effect of Advance Made by Husband—Intention—Proportionate Interest—Mingling of Funds—Accession to Trust Fund.—The effect of the money advanced by the husband, though not passed upon in the findings, could not, in any aspect, materially affect the identity of the trust fund. The evidence was sufficient to support a finding that it was intended as an advance to the children; but if it were otherwise, he could have only a proportionate interest in the fund, and if he mingled his money with the trust fund, it would become part of it by accession.
Id.—Accounting at Death of Husband—Balance of Fund—Repayment of Advance.—The advance by the husband cannot be material, where the evidence shows that upon an accounting of the business at his death the balance would be largely against him, after deducting and repaying all money advanced by him.
Id.—Identity of Drug Store and Business—Change of Materials— Permanent Entity.—The question of identity of the trust fund invested in the drug store does not relate to the specific items of stock, fixtures, etc., constituting the store at the time of the purchase, but relates to the drug store or business regarded collectively as a thing or entity, distinct from the mutable and transitory materials belonging to the concern, which collective thing constituted the trust fund and remained the same, though the materials, like the particles of water in a river, were continually changing.
Id.—Rights of Beneficiaries Against Estate—Creditors of Deceased. The beneficiaries of a trust fund held by a deceased person, which is satisfactorily identified, may enforce it against the administrator; and the creditors of the deceased who merely loaned him their money on the fictitious credit of the trust fund held by the deceased cannot successfully resist an action to enforce the trust.
THE COURT.
Appeal from judgment for defendant, and from order denying plaintiffs’ motion for new trial. The appeal from the judgment was taken more than six months after the entry of judgment, and must be dismissed. The cause was before this court on a former appeal
(Byrne v.
Byrne, 113 Cal. 294), and is thus stated in the report of the case:
“Plaintiffs, who are the children of Michael Byrne, Jr., deceased, commenced this action against the administratrix of his estate and the creditors thereof, seeking a decree that certain property which had come into the possession of the administratrix as the property of the estate was in fact held by their father as trustee in trust for them.....The estate of Michael Byrne, Jr., is admittedly insolvent, and the defendants in interest are creditors of his estate with allowed claims. Plaintiffs, having failed to present their claims against the estate within the time contemplated by. law, are here seeking to follow, and claim to have followed, and the court finds they did follow, the specific property of the trust through its mutations in form.”
On the former appeal—which resulted adversely to the defendant—there were several errors of law that do not occur in the present record. There is, also, now additional evidence which, it is claimed by appellant, establishes the trust and the identity of the trust fund. There is also another important difference between the case as then and as now presented. On the present appeal many of the facts relied upon by the appellant are specifically found by. the court, and on this appeal must be accepted as true.
The case as found by the court is in effect as follows: Plaintiffs and defendant Mary F. Byrne are the children of the deceased, Michael F. Byrne, Jr., and of Mary E. Byrne. The
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mother died January, 1878, leaving a will, which was duly probated, wherein she appointed her husband executor and devised and bequeathed him in trust, for the support, maintenance, and education of the children, all her property, real and personal. Byrne accepted the trust, and as trustee came into possession of two thousand five hundred dollars as part of the trust fund; and on the thirty-first day of December, 1883, invested this sum, with five hundred dollars of his own, in the purchase of "the personal property particularly described in subdivision 4 of said amended complaint,” taking the title in his own name, the property so purchased and described consisting of a drug store, stock, fixtures, etc., in the town of Grass Valley.
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