73 Fla. 241 | Fla. | 1917
This appeal was taken from an interlocutory decree overruling a demurrer to the bill of complaint. *
The bill seeks to subject a fund in the hands of appellant to the payment of complainant’s claim which, according to the bill, was one of the objects for which the fund was created. Ludlam and MacDonough Company, a Florida Corporation, was heavily indebted to many creditors, such indebtedness exceeding its available assets. The involved corporation owned certain lands which the corporation after consulting with complainant and other creditors, agreed to convey to the defendant for the sum of seven thousand dollars, which was to constitute a fund in the hands of defendant to be used, first, to pay off two- mortgages amounting to $4,099.83, after-wards other indebtedness of Ludlam and MacDonough Company aggregating $6,394.16. The terms under which the defendant held the money as shown by the instrument containing the agreement, and attached to the bill as a part of it, are as follows:
“First, deduct the recorded mortgage indebtedness against the property and pay same.
“Second, take the remaining moneys and disburse to the best advantage for the creditors, as shown by the list below, it being understood that this list shows the names and amounts due all the creditors to whom the Ludlam & MacDonough Company are indebted.”
The bill alleges that the land was conveyed to the defendant pursuant to the agreement; that the two mortgages were paid off and cancelled and that the sum of
In the first place we think that the fund in the hands of the defendant was a trust fund for the benefit of certain creditors to be disbursed by the defendant according to his discretion, “to the best advantage for the creditors.” While the amount which was originally placed in his hands was definitely, ascertained and a certain part of it set apart for the payment of two obligations of superior, dignity, which left a certain sum remaining, that sum was to be apportioned between certain other creditors to their best advantage. Involved in the distribution of this sum was the question of whether the claim of Fairbanks, Morse and Company for one thousand dollars had been extinguished, and whether any part of the trust fund was expended for that purpose.
The suit is nothing more than one for the distribution of a trust fund in which the complainant has an equitable interest. ' If that is true, the question whether an accounting may be had does not arise, because it would be decreed as incident to the equitable relief. See 6 Pom. Eq. Juris., §927; 1 R. C. L. p. 370; Wiggins & Johnson v. Williams, 36 Fla. 637, 18 South. Rep. 859; Farrell v. Forest Investment Co., decided at the present term. There are few limitations or restrictions on the kind or nature of property which may be the subject of a trust, the rule being that a trust may exist in any property,
There was no error in overruling the demurrer, and the interlocutory decree is affirmed.
Browne, C. J., and Taylor, Shackleford and Whitfield, JJ., concur.