Mayhew

This is an appeal from an order of the superior court of Monterey County, made under the provisions of section 2289 of the Civil Code, appointing a trustee in place of the deceased trustee, “to fulfill and complete the *215 purposes of the trust and to complete the contract set out in the petition of the petitioner.” The trust in question was claimed to have been created by the last will of Jane Walker, the provisions of said will which are material being as follows, viz.:—

This will was dated January 10, 1895, and deceased died in the year 1897, a resident of the city and county of San Francisco. Such will was admitted to probate in the superior court of such city and county, and the proceedings for the administration of the estate are still pending therein, no distribution as yet having been had.

William F. Gibson was appointed and qualified as executor of the will, and continued to act as such until his death in 1901. On February 4, 1899, he, purporting to act as executor and trustee, agreed in writing to sell to respondent, Mrs. Annie L. Gallagher, the lot of land described above for eight *216 hundred dollars, eighty dollars to be paid as a deposit, and seven hundred and…