39 N.H. 410 | N.H. | 1859
The authorities cited by the defendant relate entirely to bills in equity, brought in aid of an execu
The complainants state, as their case, that J. Mclntire was duly appointed their guardian; that as such he has sold a large amount of property belonging to them, and the money arising from these sales has been paid over by Mclntire to the other defendant, or was originally paid by the purchasers of the property to him, by direction of Mclntire; that this money was received by Hatch, with the knowledge that it was a fund derived from the sale of the complainants’ property, and that it, therefore, legally and equitably belonged to them; that they have endeavored to obtain a settlement with Mclntire during his life, and with the administratrix since his decease, by proceedings in the court of probate, which have been, and are likely to be, ineffectual, because Mclntire’s estate is insolvent, and the sureties upon his official bond are irresponsible. The object of the bill is to call upon the administratrix and the alleged depositary of the fund, to discover the facts, and if there can be found within reach of the court any part of the fund, that the court may order it to be paid over to the complainants.
The question is, if, in this view, the bill sets up a case in which the plaintiff is entitled to relief. The remedy by proceedings at law must be entirely illusory if we assume, as we must, o'f course, upon a demurrer, that the allegations of the bill are true. Let us, then, suppose that the claim of the plaintiffs upon the estate of the guardian is ascertained, either by proper proceedings in the court of
The claim of the plaintiffs, if well founded in fact, is one of a purely equitable character. No proceeding in the court of probate would afford them any relief, and we are unable to discover any course of proceeding at law by which they could obtain any redress; neither do we see any way by which the prosecution of any suit or proceeding in the court of probate or at law could materially aid them in this proceeding. We think there can be no doubt as to the equitable principles involved in the case. It has been truly said that the only thing inquired of in a court
Generally speaking, a man does not become a party to a breach of trust by buying, or receiving as a pledge for money advanced to the executor at the time, any part of the assets. But he does become such party by buying or receiving in pledge any part of the personal assets, not for money advanced at the time, but in satisfaction of his private debt. Whenever there is a misapplication of the personal assets, and they, or the proceeds of them, can be traced into the hands of any person affected with notice of such misapplication, then the trust will attach upon the property or the proceeds in the hands of such person, whatever may have been the extent of the misapplication or conversion. Ram on Assets 491, ch. 37, sec. 4; Adair v. Shaw, 1 Sch. & Lef. 261-2; 1 Story Eq. Jur., sec. 581; 2 Mad. Ch. 125; Murray v. Ballou, 1 Johns. Ch. 566; Shepherd v. McEvers, 4 Johns. Ch. 136; Murray v. Sylburn, 2 Johns. 44; Shibla v. Ely, 2 Halst. Ch. 181; Oliver v. Pratt, 3 How. U. S. 333.
Courts of equity act by creating trusts in invitum, where a party purchases trust property, knowing it to be such, in violation of the objects of the trust. In such a case courts of equity force the trust upon the conscience of the guilty party, and compel him to perform it, and to hold the property subject to it, in the same manner as the trustee himself held it. 4 Kent Com. 60; 2 Eonb. Eq., B. 2, ch. 6,
It is upon this ground that persons colluding with the executor or administrator, in a known misapplication of the property in their hands, are made responsible, for they are treated as purchasers with notice, and mere trustees of the parties who are entitled to the assets; the latter being a trust fund, under the administration of the executor or administrator. 1 Sch. & Lef. 262; Lee v. McAuley, 1 Y. & Coll. 265; Story Eq. Jur., sec. 1255.
Upon these views the demurrer must be overruled.
Demurrer overruled.