Jacob C. Beideman died in 1865, leaving a will bearing date January 1863. By the first paragraph of his will he directed that all this real estate excepting three parcels be sold, and that out of the proceeds of the sale his debts be paid. The second paragraph of the will is as follows :—

The property so distributed by the court in probate to the trustee under the terms of this trust has been managed by trustees ever since. Katie Ketler married Kidwell, and died in 1871. Her sole surviving child is the plaintiff herein. Willie Ketler died in 1901, leaving as surviving children the five minor defendants. By the terms of the trust it ceased and determined upon the death of Willie Ketler, and this action was brought to terminate it for an accounting by the trustee, and for a distribution of the trust properties, in accordance with the terms of the trust. The plaintiff set forth the will of Beideman in full, with the other facts hereinabove stated, and alleged that one half of the trust property had vested in him under the terms of the trust, and one half in the minor defendants; and this allegation was not denied by the minor defendants. The minor defendants, besides answering, filed a cross-complaint, in which they alleged that the rents of the real estate devised in trust had not been invested, but had been paid out to Willie Ketler, and to the paintiff, Kidwell, and his two brothers, who had subsequently died. This allegation was not denied. They also alleged that one of the trustees had paid to the plaintiff, Kidwell, and one of his brothers a large part of the capital fund of the trust estate. This was denied, but the trustee Flood admitted that he had paid $3,054 to the plaihtiff and his two brothers by order of the superior court of the city and county of San Francisco. Upon this issue the court found that the plaintiff had received $425, while his deceased brother had received $2,629. The minor defendants also, in their cross-complaint, set forth in full the will of Jacob Beideman, and then alleged ‘‘that by the terms of the said trust created by and in the said will for the benefit of the said Katie and Willie Ketler and their issue, the property and money therein devised and bequeathed, with the rents, issues and profits thereof, were given and devised in fee, one half to the issue of Willie Ketler, and one half to the issue of Katie Ketler, to take effect and vest at the time of the death of the survivor of the said Willie and Katie Ketler.”

The court made its findings and conclusions of law, and in the latter declared that upon the death of William J. Ketler, upon the eighth day of April, 1901, all of the trust property became the absolute property in fee of the beneficiaries in the following proportions: “To the plaintiff an undivided one-half interest; to the minor defendants each an undivided one-fifth interest of an undivided one-half interest.” Upon the motion for a new trial these conclusions of law were complained of, and upon this appeal they form the principal matter in controversy between the parties. It is not surprising that the court should have given the construction to the trust which it did, even if it were erroneous, since both parties by their pleadings set up the same interest, and the court adopted a construction of the trust which, at that time, met the views of all the beneficiaries under it.

Thus at the threshold of the inquiry as to the true construction of the trust, appellants are met with the objection of the respondent that they are bound, first, by their admissions of the allegations of his complaint, and, second, by the identical affirmative allegation which they have made in their cross-complaint. But, answering the respondent’s objection, it is to be noted that both in the complaint and in the cross-complaint, the will of Jacob Beideman is set forth in full, and the deraignment of title is shown in both instances to be from the trust clause of that will. The ease presented, therefore, is one where the pleader sets forth his chain of title, and upon that chain pleads ownership. It is uniformly held that an allegation made under such circumstances is an allegation of a conclusion of law not calling for a denial, and not binding upon either party. Thus, as is said in Gruwell v. Seybolt, 82 Cal. 7 : “Where . . . the pleader sets forth specifically the links in his chain of title, a general allegation of ownership will be treated as a mere conclusion from the facts stated.” The rule is succinctly laid down in the Encycloptedia of Pleading and Practice (725), as follows: “Where the title is specifically, as well as generally alleged, the specific allegations control and qualify those that are general,” —and this principle has frequently been recognized and applied in this state. (Levins v. Rovegno, 71 Cal. 273 ; Savings and Loan Society v, Burnett, 106 Cal. 514 .) The allegation of ownership in the complaint is identical with that in the cross-complaint above quoted. It is alleged “that by the terms of said trust the parties took title, ’ ’ and it is plain that this is but a conclusion of law, deriving its whole and sole force from the trust in the will. This being so, it is not only a mere conclusion of law, but it amounts (if it be an erroneous conclusion) to an admissio n of the parties which cannot change the law. (Tiddy v. Graves, 126 N. C. 620 .) It is of course well settled that a dehial of a conclusion of law is immaterial and raises no issue. (Nelson v. Murray, 23 Cal. 338 ; Turner v. White, 73 Cal. 299 ; Wormouth v. Hatch, 33 Cal. 121 .) And, as is said in Brown v. Newall, 2 Mylne & C., 558, “Now it is a rule of pleading that although a party is bound by the facts which he states, he is not bound by his statement of the legal consequences of those. It is for the court to judge what are those legal consequences.”

Moreover, the defendants in this action were one and all minors, and appeared of necessity by their guardian. The admissions of a guardian which mean the sacrifice and giving away of the ward’s property are never held to be binding. (Cochran v. McDowell, 15 Ill. 11 ; Chaffin v. Heirs of Kimball, 23 Ill. 35 ; Cooper v. Mayhew, 40 Mich. 528 ; Collins v. Trotter, 81 Mo. 275, 280 ; Crain v. Parker, 1 Ind. 374 ; Lathers v. Van Epp, 4 Lans. 213 .)

It must be held, therefore, upon this proposition, that it is a proper subject of inquiry before this court upon this appeal.

The question thus presented for determination is whether under the trust the children, of Mary and the children of Willie took per stirpes, or whether their issue took per capita. Jarman states the rule as follows: “Where a gift is to the children of several persons, whether it be to the children of A and B, or to the children of A and the children of B, they take per capita, not per stirpes. But this mode of construction will yield to a very faint glimpse of a different intention from the testator. Thus the mere fact that the only income until the distribution of the capital is applicable per stirpes, has been held to constitute sufficient grounds for assuming that a like principle was to govern the gift of the capital.” Says the supreme court of New York (Ferrer v. Pyne, 81 N. Y. 284 ), discussing this subject: “The rule referred to [per capita distribution] has in modern times been applied with reluctance by some courts, because it had become a rule of property, and by others, out of deference to its supposed authority; but in many if not all cases with open protest, while by others it has been wholly rejected. ... If, therefore, from any portion of the will an intention can be discovered that the children of the deceased daughter are to take as a class, and not as individuals, that intention must prevail, notwithstanding the rule of construction to which we have adverted.” In Burgin v. Patton, 58 N. C. 426 , it is said: “It is well settled as a general rule, that if a testator gives an estate to be equally divided between A and B and the heirs of C, and the latter has several children, the division will be per capita, but if there be anything in the will indicative of an intention that the devisees or legatees shall take as families, the general rule will not apply and the property will be divided per stirpes and not per capita.” And in Henry v. Thomas, 118 Ind. 23 , the proposition is much more strongly stated in the following language: “The rule (as stated by Jarman) has been so far abrogated by the courts of the different states that it no longer has any practical force in the construction of wills, and the weight of the authority is to the effect that the beneficiaries take per stirpes, unless the language used in the devise or bequest is such as to exclude that intention. ’ ’ Without further multiplying quotations from authorities, reference may be made to Minter’s Appeal, 40 Pa. St. 114; Vincent v. Newhouse, 83 N. Y. 505 ; Bool v. Mix, 17 Wend. 119 ; Adler v. Beall, 11 Gill & J. 123; Ihrie’s Estate, 162 Pa. St. 372; Lackland’s Heirs v. Downing’s Exrs., 11 B. Mon. 32 ; Bond’s Appeal, 31 Conn. 183 ; Holbrook v. Harrington, 16 Gray, 102 ; McLean v. Williams, 116 Ga. 257 .

Construing this trust with a view thus to arrive at the intent of the testator, it is at least apparent that in the disposition of the income to arise from the trust property he contemplated a distribution per stirpes. When the younger of the two attained majority any surplus proceeds of the investments was to be divided between them equally, and thereafter all the net proceeds were to be divided between them equally. In the event of one dying with issue, it was the share of the proceeds which had been paid to the parent, and that share only, which was to be given to the children, and we thus come to the final clause requiring construction—the disposition to be made in the event that actually arose—when both have died, both leaving children. It would seem to be reasonably certain that as the trustor contemplated a disposition of the proceeds of the trust between the two as separate families, so he contemplated the division of the corpus of the trust in like manner, per stirpes, and it follows that the court correctly construed the trust in this regard.

There came into the hands of the trustees under this trust the three pieces of real property specifically devised. Such real estate as was embraced in the “one-half of the rest, residue, and remainder of my property” was actually converted by sale into money and upon distribution this money with the three pieces of realty was turned over to the trustees. It appears that the trustees invested the money as called for by the trust and paid to the beneficiaries the net income of these investments and the net rents of the property. This method of disposition was acquiesced in by Willie and Katie during their lifetimes, and upon the death of Katie the same method of disposition was adopted during the continued lifetime of Willie,—that is to say, one half of the “proceeds,” including one half of the rents of the real estate, was paid to Katie’s issue, while Willie took the other moiety. This was continued until the death of Willie, when his issue here assert that this division was violative of the terms of the trust, their contention being that, under the trust, the rents of these three pieces of real estate; were not to be paid over as “proceeds,” but were to be invested, and the “proceeds” of this investment only were to be divided; therefore, as plaintiff had shared in the distribution of these rents with their father, he should be called upon to account and make over to them the 'proportion of that which is their due. As has been said, this division of the rents has continued for many years— indeed, for the long period of thirty-five years. It was acquiesced in by all of the beneficiaries of the trust, and it received the sanction of the court which, at least tacitly, put this construction upon the trust in the settlement of the trustee’s account. The true construction of the trust in this regard does not come before us, therefore, as a ease of first impression. It has received contemporaneous construction and acquiescence for thirty-five years, and while this would not be a controlling weight, with a clear abuse of the trust shown, or a clear misappropriation or misdirection of its funds, yet, in a case such as this, where the trust in some respects is inartificially drawn, where the word “proceeds,” itself a word of loose and varying significance, is employed with different meanings, we are far from saying that it was not the actual intent of the testator that the rents were to be paid over, as in fact was done. And such being the ease, we are not inclined to disturb the ruling of the trial court based upon such long acquiescence.

For which reasons the judgment and order appealed from are affirmed.

McFarland, J., and Lorigan, J., concurred.

Hearing in Bank denied.

31 Am. Dec. 285 .