Orcutt

Plaintiff, when a child of eleven years, began living with Mrs. H. N. Sherman. At that time the child had two hundred and fifty dollars deposited to her credit by her father in a savings bank in the city of Stockton. Thereafter at various times Mrs. Sherman persuaded the child to draw the money from the bank in small sums, until finally it had all passed into the possession of Mrs. Sherman. When the plaintiff had arrived at the age of twenty-five years or thereabouts Mrs. Sherman died. This action was then brought against her executor for the purpose of having a trust declared against her property for the amount so received by the deceased, Mrs. Sherman, and that such amount be paid from her estate. Judgment was rendered to this effect, and an appeal is now before us.

Upon the facts disclosed by the record the relief sought cannot be secured. Conceding the existence of a trust, plaintiff’s remedy was the presentation of her claim to the executor and suit thereon if rejected. (McGrath v. Carroll, 110 Cal. 79 .) The law upon this question of trusts, as involving facts similar to those here disclosed, was laid down in Lathrop v. Bampton, 31 Cal. 17 , and as there laid down has been…