60 N.J. Eq. 333 | N.J. Super. Ct. App. Div. | 1900
From the agreed state of the ease it appears that Peter H. Baker, the survivor of the two administrators of John E. Case, received payment of a mortgage in which the administrators had invested funds of the estate upon which Case’s widow was entitled to interest for her life, and at her death the principal was to be paid to Case’s heirs-at-law.
The money secured by the mortgage was paid to Baker in 1878, who died intestate in 1893, and his estate is insolvent.
The respondent, who is the administrator de bonis non of Case, has obtained a decree of the orphans court on the agreed upon facts, preferring his claim upon Baker’s estate for the money received by Baker upon said mortgage, and appellants, who are Baker’s administrators, appeal therefrom.
Yo opinion was pronounced in the orphans court, but it is intimated in the briefs filed in this appeal that the court deemed itself to be following the decision of this court in Smith v. Combs, 4 Dick. Ch. Rep. 420.
But there was a radical difference between the facts of that case and those upon which this case, must be decided. In that case Vice-Chancellor Bird found, upon the evidence, that the trust funds had been invested by the trustee in bank stock, which he held at the time of his death. The funds were therefore traced to a particular property which the trustee had acquired by their use. It is now a well-settled doctrine that the cestui que trust who can trace the trust funds into a particular property may assert a right to that property and its proceeds, if sold, if the proceeds remain traceable and are found in the hands of those who can assert no better right thereto.
notwithstanding some of the expressions in the opinion of the learned vice-chancellor in Smith v. Combs, when the facts of the case are considered, I think it clear that he did not intend to express any different doctrine upon the subject than that developed by cases in our own courts.
The earliest case is that of Nevius v. Disborough, 1 Gr. 343, in which the surviving judges in the supreme court made use of an opinion drawn up by Chief-Justice Ewing, then lately deceased. The facts involved in that '‘ase are singularly like those now
The doctrine announced in that case was amply sustained by the decisions cited and relied on by the chief-justice, and has been supported by many cases cited in the full and able brief of counsel for the appellants.
But counsel conceive that the doctrine has been .enlarged and extended by later cases also cited by him. The most interesting and instructive of them is In re Hallett’s Estate, 13 Ch. D. 696, in which it was held that when a person acting in a fiduciary character places money acquired in that character in his account at a banker’s and mixes it with his own on deposit there, what he afterwards draws therefrom will be presumed to be drawn from his own deposit, and what remains on deposit will be presumed to be held for the person for whom the depositor held the money. But I think the doctrine of that case and of others of the same character is not an extension of but merely an application of the original doctrine which has various applications, as declared by our court of errors in Shaler v. Trowbridge, 1 Stew. Eq. 595, and by Vice-Chancellor Van Fleet in Standish v. Babcock, 7 Dick. Ch. Rep. 628, for when moneys of a trust fund are traced to the bank account of a trustee or person acting in a fiduciary capacity, and there are moneys remaining in the account to satisfy the whole or part of the fund, the cestui que trust, or person whose fiduciary agent has placed the moneys in such an account, may follow and take those moneys, because the presumption is that the moneys previously drawn from the account were rightfully drawn, and were chargeable first upon the private deposits with which the trust funds had been mingled. Thus considered, the whole or part of the -trust fund has been traced to the account and found there, and the cestui que trust may assert his right to it.
The case of Standish v. Babcock was reversed in the court of errors, but no dissent from the doctrine I have stated was there expressed. The reversal went on the ground that the trust fund
The true doctrine was no doubt applied in Smith v. Combs, for the trustee had purchased property with the trust funds, and the property remained in his ownership at his death and went to swell the amount of his estate. The cestui que trust was, therefore, held entitled to claim its proceeds, not as a preferred debt, but as property to which he had a right as against the deceased, or those who claimed under him.
But it can have no application to a case like that before me, where the trust fund received by the trustee in money is not shown to have been employed by the trustee in the purchase of property, or to have been deposited so that the property- purchased, or the balance of the deposit, may be traced as derived-from the trust fund.
To prefer the claimant of the trust funds in such a case might, perhaps, be directed by the legislature. But there is no equitable-ground upon which the preference of such a claimant can be permitted, unless by proof he traces the trust property into that which remains of the trustee’s estate. Here no such proof is advanced. Eor aught that appears, the trustee may have casually lost the money upon the mortgage, or he may have squandered and wasted it. It is not identified with that remaining in his-hands as a part of his estate.
Eor this reason the decree below must be reversed.