fund would have remained a part of the assets of the estate and that defendants would have been responsible for its preservation by him. If Graves had lived and continued as administrator and the action remained pending, as it does, it cannot be doubted that it would have been his duty, as administrator, on behalf of the estate, to continue to defend against the claim. Unquestionably he would have been administering the estate in respect to this fund. No distinction can be drawn between the right of the estate to this fund and its right to any other part of the estate which may have been in litigation when Graves died. If Marcos A. Elizalde was the trustee of the fund under an express trust, his estate was not relieved from liability for the $1,000 by his death. This liability of the estate did not change with the death of Graves, and if it be conceded, as respondent contends, that Graves also became individually liable to the incompetent, this would not release his sureties from the primary obligation incurred by Graves as administrator. To say that Graves was not liable as administrator is to say to the incompetent that his right to have the trust declared was lost by the death of Marcos A. Elizalde. Having received the fund into his possession by virtue of his office, Graves must account for it to his successor as part of the assets of the estate.

This view renders it unnecessary to pass upon appellant's contention that defendants are estopped to deny that there is due to the estate of Marcos A. Elizalde, deceased, from the defendants, the balance reported by Ernest Graves in his last account as settled and allowed by the probate court in its order of July 9, 1898, or by reason of the adjudication of the matter by this order.

While there is some doubt in our minds whether the matter of the Dargie note can properly be considered on the record before us, as the same questions presented in relation thereto must, or, at least, may, arise on the new trial required because of the error of the trial court in allowing the defendants credit for the $1,000 item, we will state our views of the law applicable. The points presented by. appellant in regard to this note are: (1) That the finding of the court that Graves was not guilty of negligence in failing to collect this note is not supported by the evidence; and

(2) that the findings show that Graves converted the Dargie note to his own use on April 4, 1894, when he took from Dargie notes in lieu thereof executed to Graves as an individual, and that the intention to appropriate is established by the findings as to Graves' further action, in connection with the notes so made to him as an individual.

No express finding of fact was made by the trial court as to whether or not Graves converted or appropriated the note. Neither does the finding relieving him from negligence clearly cover this matter. This finding is that "Graves, as such administrator, was not guilty of negligence in not collecting the amount due." There is an uncertainty in the context which renders it difficult to determine whether this finding relates to the amount due on the original note or on those given to Graves. Accepting it as relating to the original note, and it was misconduct, rather than neglect, to take the notes in lieu thereof in his own name rather than to collect the note. Considered in connection with the notes "taken in lieu," it is apparent that when Graves invested the funds of the estate in his own name he created the relation between himself and the estate of debtor and creditor to the value of the property taken by him, and as between him and the estate it became unimportant whether he was negligent in collecting these three notes. He was liable to the estate for the property taken whether he collected these notes or not. There is no pretense that there was any necessity for his taking the notes in his individual capacity; there is no evidence that he ever reported the exchange to the court or asked its approval in the six years he lived after the transaction; he never mentioned the notes in any account or report filed by him, and the matter was not brought to the attention of the court until this action was tried. This brings the case directly in line with the facts in Matter of Bane, 120 Cal. 533, 538, [65 Am. St. Rep. 197, 52 Pac. 853].)

Upon the new trial there should be a finding of fact on the issue of the appropriation or conversion of the original note by Graves, as this is a mixed question of law and fact; so, also, in order that the court may determine whether or not the principal sum should bear interest, it is important that the trial court also make a finding of the good or bad faith of Graves in taking the notes in his own name; the latter

finding being necessary to the determination of the right of the estate to interest, but having no application to the question of the conversion of the principal sum. (Estate of Cousins, 111 Cal. 441, [44 Pac. 182]; Matter of Bane, 120 Cal. 536, [65 Am. St. Rep. 197, 52 Pac. 853].)

Respondents object to the consideration of this question on this appeal upon the grounds: (1) That the decision of this court on the former appeal has, as to the Dargie note, become the law of the case; (2) that the matter of appropriation and conversion as here presented is a question of law which cannot be considered on an appeal from an order denying a new trial; and (3) that there is no specification of insufficiency of evidence in the record which can be considered to cover the matter.

Negligence becomes a question of law only in the exceptional case, and is generally a mixed question of law and fact, and we think what is said as to the Dargie note in the decision of this court on the former appeal is of the latter character. Without examining the record on that appeal, it appears from the opinion (4 Cal. App. 117, [87 Pac. 245]), that the finding considered by this court was that "there was no negligence upon the part of the administrator in his failure to realize upon this asset,' and what was said in the opinion in this regard was based chiefly upon evidence that Dargie was at all times insolvent, whereas there is a finding in the record before us that Dargie was at all times solvent. The facts being dissimilar, it cannot be said the inference of fact drawn therefrom by the court on that appeal becomes the law of the case here. (Wallace v. Sisson, 114 Cal. 42, [45 Pac. 1000].)

When considered solely as a deduction from the findings made by the trial court, the question of appropriation or conversion is, of course, a mere conclusion of law. While there are earlier cases cited as holding that an erroneous conclusion of law from the facts found is a decision against law for which a new trial has been granted, it is now held otherwise (Kaiser v. Dalto, 140 Cal. 167, [73 Pac. 828]),_ such a matter being said to be reviewable properly on a motion under sections 663 and 633a, Code of Civil Procedure, or by appeal from the judgment. In the case at bar, as in the case cited (Kaiser v. Dalto), however, there was a failure

to find upon an issue of fact. In that case this "decision against law" was not especially urged by appellant, while here it comes within one of the grounds mentioned in the motion for a new trial, and though it receives but little attention in the brief, we think it proper for us to consider it. There is also the further distinction between the Dalto-Kaiser case and that before us, the finding there under consideration was not material to the judgment, while here the absence of such a finding precludes the appellant from successfully availing herself either of a motion under section 663, or an appeal from the judgment. The remedy for appellant here is by a retrial of an issue of fact that the court may make a finding thereon.

Under the distinction drawn in Swift v. Occidental M. Co., 141 Cal. 161, 166, [74 Pac. 700, 701], the "decision against law" here considered must be classified with those properly reviewable by a motion for a new trial. Says the chief justice, writing the opinion in that case: "An example of the first class (decisions against law reviewable by motion for a new trial) is where the trial court has failed to make any finding upon some material issue. The omitted fact being essential to the judgment, a new trial for the purpose of determining the issue is the appropriate remedy, and the refusal to grant it is reviewable on appeal from the order." This is not a case in which every material issue of fact has been decided in favor of the appellant, and in which, a new trial being clearly ineffective, the only remedy is by motion under section 663, or by appeal from the judgment. (Sharp v. Bowie, 142 Cal. 462, 467, [76 Pac. 62, 66].) Under such a state of the record, we think it proper for us to resolve such doubts as we have as to the proper practice in favor of a hearing of the question on its merits.

This is rendered all the more necessary by the fact that there appears to be no specification of the insufficiency of the evidence to sustain the decision (findings) of the court under which the matter can be considered. The third specification, which appears to be the one addressed to this matter, makes no reference to any finding, but is stated as follows: "That the evidence is insufficient to justify the decision of

the court in giving the plaintiff judgment for the sum only of $3,501, without interest, as the evidence shows," etc. The "decision" of the court is found in its findings and not in the giving of the judgment. The ground of motion for a new trial based on the sufficiency of the evidence relates to the insufficiency of the evidence to justify the inferences of fact included in the verdict of the jury or "other decision," that is, finding of fact, by the court, and a specification of insufficiency of the evidence to support the judgment cannot be considered. (Boston Tunnel Co. v. McKenzie, 67 Cal. 485, [8 Pac. 22]; Code Civ. Proc., sec. 657, subd. 6.) While the more recent decisions of the supreme court have receded from the strictness of the rule as to specifications declared in De Molera v. Martin, 120 Cal. 544, [52 Pac. 825], and now construe them liberally in favor of the right of the moving party to be heard (Swift v. Occidental M. Co., 141 Cal. 161, [74 Pac. 700]; American Type Co. v. Packer, 130 Cal. 459, 461, [62 Pac. 744]), it can hardly be said that the rule. has been so relaxed as to include the specification before us as a specification of the insufficiency of the evidence to sustain the decision.

The order of the trial court is reversed, and cause remanded for further proceedings in accordance with the foregoing views.

Allen, P. J., and Shaw, J., concurred.

A petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on September 10, 1909.