In re Estate of Thompson

Pateeson, J. This is an appeal by Isaac Goldtree, one of the trustees of the estate of Jonathan Thompson, deceased, under the will, from a decree settling an account.

Thompson died in the county of San Luis Obispo, on December 5, 1875, leaving a will in which, after making certain specific bequests, he directed the residue of his estate to be distributed to three trustees, to hold and invest the same, and deliver the income thereof to four sets of beneficiaries during their lifetimes; and thereafter to deliver the estate to the children of the first-named beneficiaries. The will was duly admitted to probate; and on March 16, 1877, the estate was distributed to the trustees, and the executors were discharged. On December 22,1884, one of the trustees named in the will was removed from his office as trustee, and the appellant, Goldtree, was appointed a trustee to fill the vacancy. Ever since said last-named date, Goldtree and John Thompson have been sole trustees of the estate, Grierson, one of the trustees named in the will, having resigned on the twenty-second day of December, 1884. The estate consisted of a large amount of real estate, lying in different counties, $11,453.84 in money, $11,015.22 in promissory notes, cattle, horses, wagons, [352]machinery, etc. It was arranged between Thompson and Goldtree that the latter should hold all the money collected or belonging to the trust, and manage the lots in the towns of San Luis Obispo and San José, and that Thompson should take charge of all other portions of the trust estate. On the day of his appointment, Gold-tree received the $11,453.84 cash belonging to the estate, and deposited the same to the credit of the general account of Goldtree Brothers, a partnership of which he was a member, and thereafter said money was mingled with the funds of the partnership. In the years 1885 to 1886, inclusive, he received on notes belonging to the estate the sum of $2,639.60, which the court found, “ together with the $11,453.84, making a total of $14,093.44, constituted a part of the corpus of the trust estate.” This amount was reduced by payments nfade pursuant to orders of the court aggregating $1,742.90, leaving, the court finds, “ corpus for which Isaac Gold-tree was chargeable on October 2, 1892, the sum of $12,350.74.” All of the moneys received by Goldtree were deposited in the name of his firm, and mingled with the funds thereof. No separate account was ever kept of the moneys received by him as trustee. The general account was drawn upon and used for the purposes of the business of their partnership, as well as for the trust estate, by checks signed “ Goldtree Bros.” The profits of the general business of Goldtree Brothers netted them on the average, for the years 1885 to 1892, inclusive, about 11 per cent per annum. The firm was engaged in various enterprises, including speculation in land, buying grain, the lending of money, and the carrying on of a banking business. In 1890 Goldtree left the state with his family for Europe, and at all times since said date has remained out of the state. During this time he has left the management of the trust to the book-keeper of his firm, and to his attorney. During the years 1884 to 1892, inclusive, various portions of the estate had been in litigation, and the appellant has paid out as necessary and proper disbursements,