Lowe v. Jones, 192 Mass. 94

Lowe v. Jones

192 Mass. 94 | Mass. | 1906

Knowlton, C. J.

The defendant’s intestate, one Merriam, held stock of the plaintiff under an arrangement which established a relation of trust between the parties, and made it his duty to continue to hold it until the conditions should change. It is averred in the bill that he sold a part of it and received the proceeds as his own, and pledged the remainder of it to the defendant bank as security for a loan made to him personally. On the facts averred there is nothing to show that the bank did not take the pledged property in good faith, under such circumstances as would enable it to hold' it as security for the loan. Indeed, this part of the stock, with Merriam’s note which it was pledged to secure; has been taken up by the plaintiff under a stipulation that the redemption should be without prejudice to the rights of any of the parties. There is no doubt of the plaintiff’s right to hold this part of the stock as trust property, except as to the claim of the bank under its loan. Were it not for the bank’s claim he could redeem it from the defendant, in accordance with the arrangement under which it was originally held. *100The present contention as to this stock relates only to that part of its value which is represented by the loan. As to that part the rights of the parties are substantially the same as they are in regard to the other stock which Merriam sold in violation of his trust.

The plaintiff avers that Merriam’s estate has been represented insolvent, and he seeks to establish a trust against the general assets of the intestate in the hands of the administrator, in such a way as to obtain the full 'value of the stock to the corresponding diminution of the amount to be divided among the creditors. All the stock that was sold and the interest of the bank in that which was pledged have gone into the hands of holders in good faith for a valuable consideration. The plaintiff therefore cannot obtain it in specie. His only right, if he has any beyond that of the general creditors, is to follow the money received on account of it, and establish his trust against that.

The rule stated in some of the early cases that a trust cannot be enforced against money mingled with other money in a common fund, because money has no ear marks, has been relaxed, and it is now held that if the proceeds of trust property can be traced into a particular fund, the trust may be established and enforced as a charge upon the fund. This principle has often been recognized both in England and America. A leading case on this subject is In re Hallett’s estate, 13 Ch. D. 696. The opinions in this case have sometimes been understood as carrying the law further in the direction of following proceeds to enforce a trust than it was actually carried. As a consequence, there have been decisions in some of the American States to the effect that, if one’s general estate has been enriched by the proceeds of trust property, the trust may be established against the general assets even though the estate is insolvent. See McLeod v. Evans, 66 Wis. 401; Davenport Plow Co. v. Lamp, 80 Iowa, 722; Myers v. Board of Education, 51 Kans. 87; Carley v. Graves, 85 Mich. 483, 487. But these cases have all been either expressly overruled or greatly limited and qualified. Nonotuck Silk Co. v. Flanders, 87 Wis. 237. Burnham v. Barth, 89 Wis. 362, 366. Bradley v. Chesebrough, 111 Iowa, 126. Marquette Fire Commissioners v. Wilkinson, 119 Mich. 655, 670. Travellers’ Ins. Co. v. Caldwell, 59 Kans. 156. Kansas State Bank v. First State *101Bank, 62 Kans. 788. In some States it is held that, while it is not enough to show that trust property went into the general assets, it is enough to charge the whole estate with a trust, if it can be shown that the proceeds remain unexpended somewhere in the estate. See Slater v. Oriental Mills, 18 R. I. 352, 353; Bradley v. Chesebrough, 111 Iowa, 126 ; Hopkins v. Burr, 24 Col. 502; Pearson v. Haydel, 90 Mo. App. 253, 264; Lincoln v. Morrison, 64 Neb. 822. But by the great weight of authority, a trust cannot be established against the proceeds of trust property which has been disposed of, unless the proceeds can be identified and traced into some specific fund or property. This is the doctrine of In re Hallett’s estate, to which we have already referred. In the later case of In re Hallett, [1894] 2 Q. B. 237, 244, it was said in the opinion: “ There is nothing in our decision in the present case which is in conflict with the decision in In re Hallett’s estate. In order to follow trust money, there must bé specific property capable of being identified, into which the money has been converted, and in that case this doctrine was applied in this way; it was said that, where a trustee pays his own money and also trust money into his banking account, it is the same thing as though he had placed them in a box, and his drawing for his own purposes must be assumed to be out of his own money. That decision in no way- qualifies the rule that there must be a specific thing capable of being followed.” See also In re Stenning, [1895] 2 Ch. 433; In re Oatway, [1903] 2 Ch. 356. The rule in Massachusetts has always been held, with considerable strictness, to require the identification of the trust property as passing into some other specific property or fund, as distinguished from the general assets of one’s estate. Howard v. Fay, 138 Mass. 104. Attorney General v. Brigham, 142 Mass. 248. In Little v. Chadwick, 151 Mass. 109, this court said: “ When trust money becomes so mixed up with the trustee’s individual funds that it is impossible to trace and identify it as entering into some specific property, the trust ceases. The court will go as far as it can in thus tracing and following trust money; but when, as a matter of fact, it cannot be traced, the equitable right of the cestui que trust to follow it fails. . . . There is nothing to the contrary in National Bank v. Insurance Co. 104 U. S. 54, 66-71, and in In re Hallett’s estate, 13 Ch. D. *102696, 708-721, which are chiefly relied on by the annuitants. In Wisconsin a majority of the court has declared that it is not necessary to trace the trust fund into any specific property in order to enforce the trust; and that if it can be traced into the estate of the defaulting agent or trustee, this is sufficient. McLeod v. Evans, 66 Wis, 401, 409. But this seems to us to be stated too broadly.” We have already seen that this case in Wisconsin has been overruled.

The great weight of authority both in England and America is in accordance with the rule in Little v. Chadwick, above stated. Lebanon Bank’s assigned estate, 166 Penn. St. 622. Marquette Fire Commissioners v. Wilkinson, 119 Mich. 655, 670. Hauk v. Van Ingen, 196 Ill. 20, 39. Ellicott v. Kuhl, 15 Dick. 333. Ober v. Cochran, 118 Ga. 396. In re Mulligan, 116 Fed. Rep. 715, 717, 718. Burnham v. Barth, 89 Wis. 362. Northern Dakota Elevator Co. v. Clark, 3 No. Dak. 26, 30. Cushman v. Goodwin, 95 Maine, 353. Rockwood v. School District, 70 N. H. 388. Peters v. Bain, 133 U. S. 670, 678, 693. Frelinghuysen v. Nugent, 36 Fed. Rep. 229, 239. Holmes v. Gilman, 138 N. Y. 369, 376. In re Hicks, 170 N. Y. 195, 198, and English cases above cited.

All that is averred in the present case is that the proceeds “ were received by said Merriam and form a part of the assets of his estate now in the hands of said respondent Jones.” This is equivalent to a statement that the proceeds in the form of money came into the hands of Merriam, and cannot be traced further, although the plaintiff avers that they were not paid out, but went to increase the assets of the estate.

Where money is received and mingled with one’s general property by the holder, and used as his own, there would be great difficulty, in most cases, in showing that none of it was expended or used to pay debts, if it were held for any considerable time. Moreover, if it is impossible to trace the money into any fund or investment, and it becomes part of the general assets of the holder, which assets perhaps have changed their form in a variety of ways after the receipt of the money, it would be impossible to enforce a trust, unless it were established against every variety of property belonging to the holder, including debts, choses in action, and other things which it is not easy to *103make the subject of a trust. In the settlement of an insolvent estate there would be little equity in preferring this kind of claim, as against other creditors some of whose claims might be quite as meritorious, and founded on as great a violation of private rights as that of the cestui que trust. Except in cases of the insolvency of the trustee, the right to establish a trust against his estate is of no consequence, for all that could be obtained in such a case would be the value of the trust property, or its proceeds, and that can always be collected of the trustee if he is solvent. For different reasons we think the rule stated in Little v. Chadwick, ubi supra, should be followed, and that a trust should not be declared against the insolvent estate of a deceased person on the ground that the proceeds of trust property went into the general assets, and thereby increased the amount in the hands of the administrator.

The contention of the plaintiff, that the administrator should be compelled to use the general assets of the estate to exonerate the stock in the possession of the bank from its liability for the bank’s debt, is simply another way of urging that the general assets of the intestate are impressed with a trust, to the amount of the loan received by the intestate. Unless they are so impressed they cannot be taken from the general creditors and used for the redemption of the trust property in the hands of the bank. The case of Ex parte Alston, L. R. 4 Ch. 168, has no application to this contention. That was a case of marshalling assets which had been pledged for a debt of the bankrupt. The pledge included trust property and other property of the bankrupt. It was decided that the other property held "in pledge must all be applied to the payment of the debt, to the exoneration of the trust property. In the present case the only property pledged was trust property, and there is no opportunity to marshal assets in the payment of the debt from the proceeds of the pledged property.

Bill dismissed, without prejudice to the right of the plaintiff to prove his claim against the estate.