Byrne

Appeals from the judgment and from the order denying a new trial.

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 *295 estate was in fact property held by their father as trustee in trust for them.

The facts averred, sought to be proved, and found by the court, are, generally, that the wife of Michael Byrne, Jr. (the mother of these plaintiffs), died testate, naming Michael Byrne, Jr., her husband, executor of her estate, and leaving all her property to him as trustee for the use and benefit of her children, these plaintiffs, and another child, made defendant in this action. The father, as trustee, accepted the trust, and of the trust property there came into his hands the sum of two thousand five hundred dollars. This money he used in the purchase of the stock, fixtures, and goodwill of a retail drug business in the city of Grass Valley, where the parties resided. He conducted this drug business during his lifetime, and, upon his death, Mary F. Byrne,…

I concur in the judgment and in so much of the opinion of Justice Henshaw as deals with the exceptions to rulings of the superior court upon objections to evidence. I concur also in his conclusion that the fund in controversy is not sufficiently identified as the property of the plaintiffs. In respect to this matter, however, I base my conclusion upon grounds different in some respects from those stated in the principal opinion. If the findings of the superior court were in other respects supported by the evidence, the mere fact that at the death of the trustee a part of the stock in the drug store remained unpaid for would not, in my opinion, destroy the identification of the trust property. Assuming that the store and goodwill were purchased with money of the trustor; that the business was thereafter carried on by the trustee for the benefit of the plaintiffs at a profit; that the stock was kept replenished out of the receipts of the business; that profits were received and appropriated by the trustee to an amount exceeding all expenses of the trust —in such case it seems clear to my mind that the store and business at the death of the trustee were sufficiently earmarked as the…

dissenting. I dissent. I see no sufficient reason for reversing the judgment. The whole record shows, in my opinion, that the errors for which the judgment is reversed are immaterial, and that the drug store was sufficiently identified as trust property.