Burnham v. Barth

| Wis. | Feb 5, 1895

PiNNEV, J.

Since the decision of this court in the case of Nonotuck Silk Co. v. Flanders, 87 Wis. 237" court="Wis." date_filed="1894-03-16" href="https://app.midpage.ai/document/nonotuck-silk-co-v-flanders-8184501?utm_source=webapp" opinion_id="8184501">87 Wis. 237, and In re Plankinton Bank, 87 Wis. 385, it must be regarded as settled, in this state at least, that, in order that the beneficiary or owner of a trust fund may be able to regain it out of the estate of a defaulting and insolvent trustee, he must be able to trace it into, and satisfactorily identify it in, the hands of the assignee or receiver of his estate, or its substitute or substantial equivalent; that when the trust fund has been dissipated, or so confounded and mixed up with the property and estate of the trustee that it cannot be traced or identified, there remains nothing to be the subject of the trust, and the owner of the fund or property is not entitled to prove for it as a trust debt and obtain a preference oVer the other creditors of the insolvent estate out of the property to which, no part of the trust fund or property or proceeds of it is traceable. The right to so trace trust fund® and regain them has, it is held, its basis in the right of property. In Thuemmler v. Barth, post, p. 381, the rule laid down in the former cases was reaffirmed and applied. "When the trust fund cannot be identified or traced into some specific estate or substituted property, and the means of ascertainment fail, the trust wholly fails, and the party can only prove as a general creditor.

The court held that the facts stated warranted the assumption that the trust fund in question had been invested, by the bank in, and formed a part of, the collaterals and securities in the hands of the receiver, but what particular collaterals or securities of those received by him is not indicated. And it is upon this ground that the judgment against the receiver as such, appealed from, has been rendered. Instead of requiring the petitioner to ascertain and; identify the trust fund as existing in some specific changed or substituted property or estate, the judgment makes the claim of the petitioner a trust debt or preferred demand against all the collaterals and securities which came to the hands oh the receiver, whether taken before or after the deposit of the fund claimed, notwithstanding the fact that very many others are entitled to claim, as we have seen,, very large sums, and to trace the same into the same col-laterals and securities, so far as they may be able; and some of them may succeed, perhaps, in making the necessary proof for that purpose. There is quite as much to justify the conclusion that the fund in question was paid out to-creditors of the bank as that it was invested in collaterals- or securities which came to the hands of the receiver; and if it had been so paid out, that fact would afford no ground for charging the assets of the bank with the debt as a trust demand or preferred claim, as was clearly shown in Nonotuck Silk Co. v. Flanders, 87 Wis. 237" court="Wis." date_filed="1894-03-16" href="https://app.midpage.ai/document/nonotuck-silk-co-v-flanders-8184501?utm_source=webapp" opinion_id="8184501">87 Wis. 237.

Tbe judgment appealed from rests upon the ground that it is to be presumed that the bank paid its creditors and its expenses out of its own money, and that its investments in the securities and collaterals represent only this particular trust fund, rather than the large amount of other claims of like character. It may well be that others having such •claims may succeed in tracing their trust funds into these identical securities; and in that event it may transpire that the court, by its judgment, has awarded to the petitioner, without definite proof of ownership, that which in equity really belongs to others. The court had nothing before it to show that such was not the case. If the several trust funds had been in a deposit box of the bank, with funds of others, but in one gross sum or mass, when the suspension •occurred, there could be no difficulty in awarding to each his own; but none of the trust funds remained. When a trustee mingles trust money with his own, in a bag or box or bank account, the right of the beneficiary attaches, to have all that belongs to him out of the bag, box, or account, .and whatever the trustee may take out will be deemed or presumed to have been taken from his own, instead of the trust, funds; but when the money in the bag, box, or account has all been drawn out, and there is no evidence to .show what has been done with it, or with the trust portion •of it, there is no presumption that the trust funds, to any extent, are included or represented fix securities, the legal title to which is vested in the bank. The presumption that the trustee has paid Cut only his own funds in no way qualifies the rule that there must be a specific thing, capable of being followed.

If the trust funds which the bank had, had been invested by it from time to time in various city lots or farms, the title to which had been taken in the name of the bank, and the owner of a part of such funds assumed to ratify the act by which his money had been invested, as he well might, •and claim tbe property purchased with it, or to repudiate it and enforce a claim for bis money against tbe land so purchased with it, it seems plain that be could not do either unless be could show what particular part of such real- estate bad been purchased in whole or in part by, and represented, bis money; and, not being able to do this, it is clearly impossible to maintain that without such' proof be could ■exercise either of these rights against and in respect to all the lands generally, so purchased from time to time with the trust funds owned by himself and by others. In like manner, in respect to these securities, there is no evidence to show whether any of the moneys claimed by the petitioner were invested in them or in any particular part of them; and as the right to trace his trust fund is founded on the right of property, and not on the ground of compensation for its loss, he must be able to point out the particular property into which the fund has been converted' When he is unable to do this, the trust fails and his claim becomes ■one for compensation only, for the loss of the fund, and •stands on the same basis as the claims of general creditors..

The rule in the administration of insolvent estates is that equality is equity, and the burden of proof is on the claimant to show the facts which entitle him to claim as owner and not merely as a creditor. The receiver represents all the creditors, in a general sense; and the presumption, in the absence of proof, as between different claimants is in favor of equality of right. The petitioner has shown no facts entitling him to the securities in question to the exclusion of other owners of trust funds similarly situated. While the owners of one or more trust funds may trace-their money into specific property purchased with them, or it may be in part with them and funds of the trustee, each party, in order to assert and enforce his equitable rights as OAvner, can do so only upon proof of the amount contributed Try each, of their respective funds, in the purchase. Each', claimant is entitled to his own, but only upon clearly identifying it; and, failing to do this, he cannot be allowed to* take property which equitably belongs to others, to make himself whole. He cannot maintain his position as owner by merely showing facts Avhich entitle him to the position, of a mere creditor.

The subject under consideration is discussed with great clearness and ability in the case of Slater v. Oriental Mills, (R. I.) 27 A. 443" court="R.I." date_filed="1893-07-12" href="https://app.midpage.ai/document/slater-v-the-oriental-mills-3869080?utm_source=webapp" opinion_id="3869080">27 Atl. Rep. 443, and the reasoning there adopted' seems to be conclusive against the petitioner’s case. The-court will go as far as it can in tracing and following trust money, but when, as a matter of fact, it cannot be traced, the trust and equitable right of the beneficiary to follow it fails. Under such circumstances, if the trustee has become* insolvent, the court cannot presume, in the absence of proof, that the trust money is to be found somewhere in the general estate of the trustee, or somewhere in a quite general part of his estate of a certain character that still remains, and proceed to charge it accordingly. Little v. Chadwick, 151 Mass. 110. And where the trust fund, as in this case,, cannot be traced, and the substituted property into which it has entered specifically identified, the trust fund must be regarded as dissipated, within the meaning of the authorities,— scattered, dispersed, and, as such, destroyed. And this is the logical result of the case of Nonotuck Silk Co. v. Flanders, 87 Wis. 237" court="Wis." date_filed="1894-03-16" href="https://app.midpage.ai/document/nonotuck-silk-co-v-flanders-8184501?utm_source=webapp" opinion_id="8184501">87 Wis. 237, and other subsequent cases in this-court. This is in 'harmony with the great weight of modern authority. Freiberg v. Stoddard, 161 Pa. St. 259; In re Cavin v. Gleason, 105 N.Y. 256" court="NY" date_filed="1887-04-19" href="https://app.midpage.ai/document/matter-of-cavin-v--gleason-3602789?utm_source=webapp" opinion_id="3602789">105 N. Y. 256; Philadelphia Nat. Bank v. Dowd, 38 Fed. Rep. 172; National Bank v. Insurance Co. 104 U.S. 54" court="SCOTUS" date_filed="1881-11-18" href="https://app.midpage.ai/document/national-bank-v-insurance-co-90423?utm_source=webapp" opinion_id="90423">104 U. S. 54; Cecil Nat. Bank v. Thurber, 8 C.C.A. 365" court="4th Cir." date_filed="1894-02-07" href="https://app.midpage.ai/document/cecil-nat-bank-v-thurber-8848622?utm_source=webapp" opinion_id="8848622">8 C. C. A. 365; Ex parte Hardcastle, 44 Law T. (N. S.), 524; In re Hallett & Co., Ex parte Blane, [1894] 2 Q. B. Div. 237

For these reasons, we bold that the petitioner wholly failed to show himself entitled to the judgment he obtained.

By the Oom't.— The judgment of the superior court is reversed, and the cause is remanded for further proceedings according to law.