Korrick v. Robinson, 180 P. 446

Korrick v. Robinson

180 P. 446 | Ariz. | 1919

BAKER, J.

(After Stating the Pacts as Above). — The lower court found that the business of J. W. Robinson & Son *326was the individual business and property of the defendant J. W. Robinson, and that no partnership existed between the said J. W. Robinson and the said Irl R. Robinson. This finding is attacked by plaintiff’s assignment as wanting support in the evidence. It appears from the testimony that Irl R. Robinson never furnished any part of the capital of .the said, business and that he had no interest in the profits of the business. It is true that the evidence shows that he did some clerical work about the conduct of the business, such as keeping books, signing letters to creditors of the business, etc., but it is probable that this character of work was done by him as the mere agent or servant of J. "W. Robinson. It is not our province to weigh the probative force and effect of the evidence; that was the exclusive province of the trial court. The only matter for review here is the question as to whether or not there is substantial evidence to support the findings and judgment. • The evidence is conflicting, and the rule is that the appellate court will-, not disturb the findings of fact of the trial court, based upon conflicting evidence, when they are supported by any substantial testimony, and we cannot say that the finding in question is unsupported by the evidence.

We do not consider that we are called upon to declare the order of the superior court, giving the guardian (the privilege to use the ward’s money in the business of J. W. Robinson & Son, a nullity. Whatever may be the status of that order, valid or invalid, it ought not to be treated as divesting the funds of the ward of their trust character, and as creating the conventional relation of mere debtor and creditor between Irl R. Robinson and his guardian, J. W. Robinson. The right still remains in the ward to follow this trust fund, or its proceeds in the shape of other property, and retake what rightfully belongs to him.

It appears that J. W. Robinson gave a bill of sale of the fixtures in the store of J. W. Robinson & Son to C. R. Robinson, and that C. R. Robinson, in consideration of such bill of sale, deposited in the G-lendale State Bank the sum of $470.80 to the credit of J. W. Robinson, as the guardian of Irl R. Robinson. The intention of J. W. Robinson in making tbk transfer was to replace the money of his ward, Irl R. Robinson, which he had used in the business of J. W. Robinson & Son. But there is no finding that the money of the *327ward was used in the purchase of these fixtures. The only evidence of the disposition of the ward’s money is that it was used in the business of J. W. Robinson & Son. This is not a sufficient showing to impress a trust upon the fixtures. The legal principle involved is stated in Perry on Trusts, sixth edition, page 569, as follows:

“If the bankrupt, by a breach of trust, has converted the trust estate into other property, the cestui que trust may follow it into the hands of the assignee so far as he can identify the particular property obtained by breach of the trust, but if the trust property has become so amalgamated with the general mass of the bankrupt estate that it cannot be traced, or identified, the cestui que trust must prove his claim.”

The great weight of authority holds that it is not sufficient for a cestui que trust to prove that his money originally passed into the hands of an insolvent, and was used by him in his business. In following a trust fund, a court of equity will, so far as possible, aid the cestui que trust, by indulging every, reasonable presumption in his favor, but with all of this advantage the cestui que trust must, in the end, locate the trust fund in the specific property he seeks to take out of the general assets of the insolvent trustee. E. B. Macey, Trustee, etc., of the Bank of Sully, Iowa, Bankrupt, v. Herbert Roedenbeck, 227 Fed. 346, L. R. A. 1916C, 12, and note, 142 C. C. A. 42; Cavin v. Gleason, 105 N. Y. 256, 11 N. E. 504; Spokane County v. First National Bank, 68 Fed. 979, 16 C. C. A. 81.

We are of the opinion that the judgment must be reversed, and a new trial awarded for the want of a finding that the ward’s money was employed or used in the purchase of the fixtures of the store, which were transferred by J. W. Robinson to C. R. Robinson; and it is so ordered.

CUNNINGHAM, C. J., and ROSS, J., concur.