92 Wash. 48 | Wash. | 1916
Lead Opinion
This cause is before us upon rehearing En Banc. The Department opinion will be found reported in 89 Wash. 412, 154 Pac. 796, wherein the order appealed from was affirmed. On reargument, our attention has been directed to parts of the record not called to our attention in the former hearing which seem to us to require a modification rather than an affirmance of the order.
In addition to the facts recited in the Department opinion, these further facts appeared. Mr. Abel presented his claim
' In the light of these facts, it seems to us that our conclusion to the effect that the order of the trial court be af
The fact that the court was induced to hold, on the objection of Mr. Abel, that the insurance fund was a part of the estate, gave him no preference right to have his claim paid in full from such fund. Equality is equity in the distribution of estates. Costs and expenses may be allowed to a creditor who, at his own suit, has brought funds into an estate to recover which the administrator or other creditors have not seen fit to make a contest, but before creditors in equal degree are barred from the fund recovered they must at least have had the opportunity to say whether they will or will not join in the contest.
Whether, under the circumstances i*ecited, the claim of Mr. Abel against the estate is a preferred claim is a question upon which the authorities are divided. Without noticing them in detail, we think the better reason is with those holding such a claim to be preferred. The money derived by Mr. Blattner from the discount of the notes was in his hands a trust fund. The title to it was at all times in Mr. Abel, and Mr. Blattner’s power was that of an agent to dispose of it for a particular purpose. This relationship was not changed by the fact that Mr. Blattner intermingled the fund with his own. He could not by this act change the relation existing between himself and Mr. Abel from that of trustee and cestui que trust to that of
This view of the record renders it unnecessary to consider the question determined in our former opinion, and we leave it open for future consideration.
The order appealed from is reversed, and the cause remanded with instruction to allow the claim of Mr. Abel as a preferred claim against the estate of Mr. Blattner to be paid along with the other preferred claims against the estate.
Rehearing
On Rehearing.