The receipt of the proceeds of the sale of the testator's estate, by H. M. Willis, constituted him a trustee; and their application was in strict conformity with the directions of the will. (2 Perry on Trusts, §§ 511 b, 511 c, 783; 2 Daniel's Ch. 1362; 2 Story Eq. Jur. § 1356; 1 id. 511.)
The pretended satisfaction of the mortgage was void on its face, and imparted notice to every one of its absolute nullity. (5 Curt. Dec. 476; 16 id. 191; 13 N.Y. 592; 1 Perry on Trusts, §§ 203-4 et seq.; 44 Cal. 112; 49 id. 292; Civ. Code §§ 250, 2230, 2243, 2244.)
JUDGES: McKinstry, J. Morrison, C. J., and Ross, J., concurred.
OPINION
McKINSTRY, Judge
Thornton, J. (in bank, on petition for rehearing):
The petition for a rehearing before the Court in bank in this case is denied.
The second paragraph of the opinion of Department No. 1 is in these words: " Nevertheless, Henry M. Willis was a trustee holding the moneys of the infant Amelia, Jr., which came into his hands in trust for her. The mortgage executed by him to secure such moneys was altogether for her benefit, and the fact that it is set up in her answer by her guardian ad litem, and relied upon (and proved ) herein, constitutes sufficient proof of delivery to and acceptance by her." To which we desire to add, " and this must be so, since if it (the mortgage) had not been for the benefit of the infant, the Court below, it must be presumed, as it had control over the conduct of the guardian ad litem, would not have allowed him to set it up." (Story's Eq. Jur., § 1349-1353 inclusive; Sanford v. Head , 5 Cal. 297; People v. Houghtaling , 7 id. 348; People v. Davidson , 30 id. 379; Dougherty v. Creary, id. 290; Joyce v. McAvoy , 31 id. 279, et seq. ) The words " and proved " in parenthesis in the above quoted paragraph are inserted by us to indicate the proper construction of the former opinion.
We are further of opinion that the facts as found show that the mortgage as taken was in exact compliance with the terms of the will, and in that view, a voluntary acceptance by the infant was unnecessary--since the law compelled her acceptance. She takes under the will, and is bound by its terms. (Morrison v. Bowman , 29 Cal. 346.
Whether Henry M. Willis was guardian or not we consider immaterial. The same result follows whether he (Willis) was or was not the general guardian of the infant Amelia Willis.