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and may assess the owners of property through which mine the mode of distributing the burden. Knapp, J., or frontiug which said sidewalks are constructed, so in delivering the opinion of the court, says: “In State much of the expeuse thereof as they shall deem just v. Mayor, etc., of Paterson, 8 Vroom (N. J.), 4 12, an asand equitable," and further providing for notice, hear- sessment, certified to have been equitably made, was ing, and appeal, etc.

set aside as governed by no rule. It is not perceired One defense to this suit to recover an assessment how a legislative enactment which provides no rule or imposed on the defendant for building a sidewalk in standard for making an assessment for a public work front of his block of stores, is the alleged unconstitu- can have higher claim for validity.” tionality of the said act.

That case may be regarded as extreme. A much It is not here questioned but that the rule is now stricter rule was adopted thau is contended for here. settled that a municipal corporation may be author- In our statutos providing for general taxes a fixed ized to make a local and special tax or assessment for the standard of apportionment has always been adopted, building of sidewalks and certain other improvements securing uniformity as far as practicable in theory at within proper village or city limits, and apportion the least in respect to persons and property within the juexpeuse according to the benefit of the abutting prem- risdiction of the body imposing the taxes. ises. Allen v. Drew, 44 Vt. 174; 2 Dill. Mun. Corp., $ There is greater reason for adhering to this rule in 761; Cooley Const. Lim.

respect to provisions for special assessments. When The defendant claims that by the act in question, the money of the few is taken for the benefit of the thus leaving to a board of officers to say what in their whole, it is in substance the exercise of despotic discretion “is just and equitable," no sufficiently defi- power. It is justice when an equivalent is given. Nu nite legal standard of assessment is fixed, as required the case of a local improvement there is an equivalent by those provisions of the Constitution which were in- for the assessment when it only equals the special bentended as a guard against uuequal taxation.

efit to the property benefited. But it is the right of Judge Dillon, iu stating the general result of an ex- the citizen to have the law, which reaches into his tended reference to the judgment of the courts of the pocket specially, so guarded as to secure bim approxiseveral States conceruing local improvements and as- mate justice according to legal and constitutional sessments, in respect thereof saye:

principles. The language of Judge Agnew in the “3. Special benefits to the property assessed, that is, Washington Avenue case, 69 Penu. St. 352, is perti. benefits received by it in addition to those received by went: “In questions of power exercised by agents it is the community at large, is the true and only solid sometimes the misfortune of communities to be foundation upon wbich local assessments can rest. carried, step by step, into the exercise of illegitimate

The cases differ somewhat as to how the benefit may powers, without perceiving the progression, until the be determined, whether by the frontage or superficial usurpation becomes so firmly fixed by precedents area; but no such question arises here. The only it seems to be impossible to recede or to break through question here is whether the phrase, “ as, they shall them." deem just and equitable," is sufficiently certain as a Our Constitution provides that “every member of standard of assessment. If it could be properly con- society hath a right to be protected in the enjoyment strued as meaning only what was just and equitable of life, liberty and property, and therefore is bound to in view of the benefit of the premises fronting on the contribute his proportion toward the expense of that improved sidewalk, it would possibly be sufficient. protection." The exceptions do not state upon what view or theory This is less restrictive than the Constitutions of the assessment in question was made. If said clause many States; but the cases which have established tbe is fairly liable to a different construction from the one rule that the statute authorizing an assessment must above stated, then it furnishes no certain legal stand- fix the legal standard to which it shall be made to cou. ard of assessment. Did the Court of Common Coun- form, have not turned on the phraseology of constitucil determine the amount of this assessment in view tional provisions. It is everywhere treated as a geneof the benefit of the abutting land; or of its value; or ral constitutional principle that no member of society of the personal convenience of the defendant; or of shall be compelled to contribute more than his proporthe ability of the defendant to pay; or of all these tion. Unless this is so there is no protection against combined? Who can say? Why might they not under arbitrary injustice in the imposition of taxes. To sethis clause assess one man in one view and another cure this protection courts have held that legislative in another view ? “Just and equitable" in re- enactments must set up a staudard, fix a rule to be spect to what? The words import no special limita- couformed to as a guide in all cases, a uniform, certion.

tain rule, so far as reasonably practicable, and not susIn State v. Newark, 8 Vroom (N. J.), 415; S. C., 18 ceptible to different applications to different individAm. Rep. 7-29, the chief justice of New Jersey says: uals of the class to which it applies. If the enactment “The ovly safe rule is that the statute authorizing the fails in this regard it is deemed fatally defective. The assessments shall itself fix either in terms or by fair proposition is sound, because it is an adherence to the implication the legal standard to which such assess- fundamental principles which in a constitutional goy. ment must be made to conform. In no other way can ernment are designed to protect the individual against property be adequately protected.”

injustice and oppression. The act in question makes no express allusion to as- We think the act in question failed to set up a standsessment on account of benefit; neither does it limit ard by which all assessments for sidewalks iu Vergenthe assessment to the amount of benefit. Yet as we pes must be made; that the words “just and equita. have seen, the right to assess at all depends solely on ble" do not import with reasonable certainty a limitabenefit, and must be proportioned to and limited by tion to particular benefits to property benefited. We it. An improvement might cost double the benefit to do not know but tbat one member of the common the laud specially benefited.

council construed the words as applying to one considIn New Brunswick Rubber Co. v. Commissioners of eration, and another member to a different consideraStreets and Sewers, 9 Vroom (N. J.), 190; S. C., 20 Am. tion; por that any of them limited the consideration Rep. 380, it was decided that where a statute author- to benefits. In short, the enactment was inadequate ized commissioners to assess the cost of a sewer upon to the purpose designed by it. lands benefited thereby in such proportion as they This view renders it unnecessary to pass upon the should deem just and equitable, no valid assessment other points of defense. could be made under the statute, as it failed to deter- Judgment reversed and cause remanded.

WILL-PRECATORY TRUSTS.

CIRCUIT COURT, DISTRICT OF CALIFORNIA.

SEPTEMBER 22, 1884.

COLTON V. COLTON.* The will of David D. Colton contains this provision: “I

give and bequeath to my said wife, Ellen M. Colton, all my estate, real and personal, of which I shall dio seised, or possessed or entitled to. I recommend to her the care and protection of my mother and sister, and request her to make such gift and provision for them, as in her judge ment will be best.” Held, that this provision is not an absolute gift, or bequest in trust for the mother and sister of the testator; that it is not an jinperative command, to make the provision for their support, but only a recommendation and request, leaving the matter to the judg

ment and discretion of his surviving wife. The conditions necessary to raise a trust from words of re

commendation and request in a will discussed.

THE opinion states the facts.

It can

W. W. & H. S. Foole and Grove L. Johnson, for complainaut.

Crillenden Thornton and Stanley, Stoney & Hayes, for defeudant.

SAWYER, Cir. J. This is a bill in equity to establish a trust in favor of complainant in the estate of the late David D. Colton, deceased, in the bands of his devisee and legatee, Ellen M. Colton; and to obtain a decree against the defendant, requiring her to make a suitable provision out of the estate devised and bequeathed to defendant, for the maintenance of complainaut.

The will out of which the suit arises is as follows, to wit: “I, David D. Colton, of San Francisco, make this my last will and testament. I declare that all of the estate of which I shall die possessed is community property, and was acquired since my marriage with my wife. I give and bequeath to my said wife, Ellen M. Colton, all of the estate real and personal, of which I shall die seised, or possessed, or entitled to. I recommend to her the care and protection of my mother and sister, and request her to make such gift and provision for them, as in her judgment will be best. I also request my dear wife to make such provision for my daughter Helen, wife of Crittenden Thornton, and Carrie, as she may iu her love for them choose to exercise. I hereby appoint my said wife to be the executrix of this my last will and testament, and desire that no bonds be required of her for the performance of any of her duties as such executrix. I authorize and empower her to sell, dispose of, and convey any and all of the estate of which I shall die seised and possessed, without obtaining the order of the Probate Court, or of any court, and upon such terins, and in such manner, with or without notice, as to her shall seem best. If my said wife shall desire the assistance of any one in the settlement of my estate, I hereby appoint my friend, 8. M. Wilson of San Francisco, and my secretary, Charles E. Green, to be joined with her in the said executorship, and author. ize her to call in either or both of the said gentlemen, to be her co-executors. And in case she shall so unite either, or both of them with her, the same provisions are hereby made applicable to them, as I have before made for her in reference to bonds, and duties, and powers."

The question is, does this will create a trust in favor of complainant? Do the recommendations and requests, found in the will, give an absolute legacy to

*S.C., 4West Court Rep. 11.

the complainant out of the estate, and do they constitute an imperative command to make the provision, or is the matter left to the discretion of the surviving wife, as sole devisee and legatee, to act in the matter as her judgment and feelings shall dictate? It canuot be denied that the earlier English decisions, and a few of the earlier cases in this country, go a long way toward sustaining the claim set up by the complainaut. But later cases, both in England and the United States, considerably limit the coustruction given by the earlier decisions to precatory words of a will, or words of request or recommendation, and some of them, especially in this country, fall little short of repudiating and altogether overruling the earlier cases. Says Story,on this subject: "In the interpretation of the language of wills also, courts of equity have gone great lengths, by creating implied, or constructive trusts, from mere recommendatory and precatory words the testator." 2 Story Eq. Jur., $ 1068.

After considering the English cases, he adds: “The doctrine of thus coustruing expressions of recommendation, coufidence, hope, wish, and desire, into positive and peremptory commands, is not a little difficult to be maintained upon sound principles of interpretation of the actual intention of the testator. scarcely be presumed that every testator should not clearly understand the difference between such expressions, and words of positive direction and command; and that in using the one and omitting the other, he should not have a determinate end in view. It will be agreed on all sides, that where the intention of the testator is to leave the whole subject, as a pure matter of discretion, to the good will and pleasure of the party enjoying his confidence and favor; and where his expressions of desire are intended as mere moral suggestions, to excite and aid that discretion, but not absolutely to control or govern it, there the language cannot, and ought not to be held to create a trust. Now words of recommendation, and other words, precatory in their nature, imply that very discretion, as contradistinguished from peremptory orders, and therefore ought to be so construed, unless a different sense is irresistibly forced upon them by the context. Accordingly in more modern times, a strong disposition bas been indicated not to extend this doctrine of recommendatory trusts, but as far as the authorities will allow to give to the words of wills their natural and ordinary sense, unless it is clear that they are designed to be used in a peremptory sense.” 2 Story Eq., $ 1070.

The most favorable rule for complainant, now recoguized, that can be deduced from the body of the English authorities is doubtless, that stated by Lord Laugdale in Knight v. Knight, 3 Beav. 173, where he said: “As a general rule, it has been laid down, that where property has been given absolutely to any person, and the same person is, by the giver, who has power to command, been recommended, or entreated, or wished, to dispose of that property in favor of another, the recommendation, entreaty, or wish, should be held to create a trust: 1. If the words are 80 used, that upon the whole, they ought to be construed as imperative; 2, if the subject of the recommendation, or wish be certain; and 3, if the objects, or persons intended to have the benefit of the recommendation, or wish be also certain." See 44 Am. Dec. 372, note to Harrison v. Harrison's Admr., 2 Grat. On the contrary, in the language of Story: “Wherever therefore the objects of the supposed recommendatory trusts are not certain or definite: wherever the property to which it is to attach is not certain or definite; wherever a clear discretion or choice to act, or not to act, is given; wherever the prior dispositions of the property import absolute and uncontrollable ownership; in all such cases courts of equity will not

9

create a trust from words of this character." 2 Story inite than the provision in the will in question. And Eq. Jur., $ 1070; see also Howurd v. Carusi, 109 U. S. in the language of Lord Cottenham, iu Finden v. 733-4, citing and recognizing the rule as stated by Stephens, 2 Phil. 142: “Words of recommendation are Story, and ? Pomeroy Eq. Jur., $ 1014 to 1017, where never construed as trusts, unless the subject be certhe subject is well discussed.

tain.” 44 Am. Dec. 376. The will in question there. Upon a careful consideration of the language of the fore fails in this condition of certainty as to the subwill, giving the words their usual natural significa- ject, essential to the creation of a trust by precatory tion, as they would doubtless be understood, almost words, even under the English rule most favorable to if not quite universally, by ordinarily intelligent Eng such trusts now recognized. lish speaking people, without reference to any strained Again under that branch of the rule stated by Story, artificial, or technical rules of construction, it appears that wherever "the prior dispositions of the property to me that two at least, if not three of these requisite | import absolute uncontrollable ownership, courts of conditions negatively stated are found in the will. equity will not create a trust from words of this cbarThe " objects of the supposed recommendatory trusts" acter," 2 Sto. Eq. Jur., § 1070, this will is deficient in are undoubtedly “certain and definite,” they are the this one of the elements from which the intention to mother and sister of the testator. But "the property create a trust may be inferred. No language can to which it (the trust) is to attach is not certain or de more clearly and unmistakably “dispose of property finite.” “The subject of the recommendation or absolutely or “import absolute uncontrollable ownerwish" is surely not "certain." No specific property ship” in the devisee or legatee, than the language of or amount is indicated, as the subject of the asserted this will, making “the prior disposition of the proplegacy or trust. The testator only “requests ” his erty of the testator," which is, “I give and bequeath general legateo and devisee, "to make such gift and to my said wife, Ellen M. Colton, all of the estate, provision for them as in her judgment will be best," real and personal, of which I shall die seised or posapparently leaving the whole matter to her judgment sessed or entitled to." And further ou iu his will the and discretion. How is the court to determine to testator adds, “I authorize and empower her to sell, what property or to what amount of money the trust is dispose of and convey any aud all of the estate of to attach? Neither the property nor the amount of which I shall die seised and possessed, without obtain. money is indicated; and the testator has not left the ing the order of the Probate Court or of any court,aud matter to the judgment of the court to determine, but upon such terms and in such manner, with or witbout in express terms to the judgment of his surviving notice, as to her shall seem best.” If this language of wife, his sole devisee and legates. The subject is / gift, and devise, and this power to dispose of, and therefore not certain or definite. The testator has control does not coustitute “a prior disposition of the neither indicated the particular property nor the par- property," which “imports absolute and uncontrollticular amount of money out of the million of dollars able ownership," then I am at a loss to know what in value claimed to bave been left, to which the legacy would express that idea, or effect sucb a purpose. Iu or trust is to attach, nor has he indicated any rule by this respect also the will is deficient in one of the elewhich the property or amount oan be ascertained, ments suggested by Story, as necessary to create a other than the judgment of his surviving wife, which trust from mere precatory words or words of recomjudgment she appears to have exercised, for she made mendation or expressing a desire. gifts from time to time in small sums, amounting in Again, are the words considered by themselves "80 the aggregate to $1.500. Certainly the property or used as upon the whole they ought to be construed amount of money to which the trust, if any there be, as imperative," or is there “a clear discretion or is to attach-the subject of the recommendation or choice to act or not to act,” given irrespective of other request or the subject of the trust-could not well be elements to be considered' The language and all the more uncertain or more indefinite. In the absence language to be considered on this point is, “I recomof words expressly creating a trust, this indefinite-mend to her the care and protection of my mother and ness and uncertainty constitute strong evidence that sister, and request her to make such gift and provisthe testator did not intend to create a trust. In lan- ion for them as in her judgment will be best." Or in guage quoted from 10 Ves. 536: “And wherever the effect, I do not myself make any gift or any provision subject to be administered as trust property, and the for them, according to my judgment, or determine objects for whose benefit it is to be administered, are how much they ought to have, but I recommend them not to be found in the will, not expressly creating a "to her care and protection; "aud I “request her to trust, the indefinite nature and quantum of the sub- make such gift and provision for them as in her judg ject, and the indefinita nature of the objects, are ment will be best." always used by the court, as evidence that the mind By the express terms of the Civil Code of Califorof the testator was not to create a trust; and the diffi- nia, "a will is to be construed according to the inten. culty that would be imposed upon the court, to say tion of the testator," and the “testator's intention is what should be so applied or to what objects, has been to be ascertained from the words of the will, taking the foundation of the argument that no trust was in- into view the circumstances under which it is made, tended; or as Lord Eldon expresses it in another exclusive of his oral declaratious.” “All parts of the case, Turn. & Russ., 159, where a trust is to be will are to be construed in relation to each other, and raised, characterized by uncertainty, the very diffi

if possible, to form a consistent whole." A culty of doing it is an argument which goes to a cer- clear and distinct devise or bequest cannot be affected tain extent toward inducing the court to say, it is * by any other words not equally clear and disnot sufficiently clear what the testator intended :' tinct, or by inference or argument * * * from See also Knight v. Boughton, 11 Clark & Fin. 548;" other parts of the will." "The words of a will are to note to $ 1070, Sto. Eq. Jur., p. 284-5. In the notes to be taken in their ordinary and grammatical sense, unHurrison v. Harrison's Admx., 2 Grat. 1, reported in less a clear intention to use them in another sense can 44 Am. Dec. 375, and in 2 Sto. Eq. Jur., $ 1073 et seq., be collected, and that other can be ascertained." motes, the cases are cited illustrating certainty and un- Civil Code, $ 1317-18, 1321-2, 1324. It seems to me that certainty in a will, within the meaning of the condi- under these rules, it is impossible to hold it to hare tion of the rule, adopted by the courts, as to the sub- been the intention of the testator himself to give abject of the recommendation or request; and as it ap- solutely any portion of his estate to be beld in trust pears to me, few of those provisions held to be too un- for complainant. The language is plain, and readily certain to create a trust are more uncertain or indef. I understood, taking the words in their ordinary and

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grammatical sense. The testator manifestly appre- It is urged on the part of the claimant, that in this ciated the difference, which every one must recognize class of cases a wish expressed, or a simple request to between words of absolute devise or bequest, and the devoted and obedient wife, is equivalent to a commere words of recommendation or request. To con- mand. This when voluntarily recognized as an oblistrue these latter words of recommendation and re- gation by the wife, in the affairs of married life, may quest as meaning precisely the same thing as words be a very proper and salutary principle and pracof absolute bequest would be to give them a meaning tice in marital polity and domestic etiquette; but it is entirely different from the sense in which they are too romantic, too largely deficient in the sanctions of ordinarily used and ordinarily understood. The the obligations of positive law, too loose and uncer"clear and distinct,” prior absolute "devise and be- tain to be adopted by the courts, as a rule of law, by quest" to the defendant of all his estate, in language which large estates are to be distributed in opposition which it is impossible to misunderstand, would be to the plain, ordinary, actual matter-of-fact sense of materially “affected” by converting an indefinite and the words of a will. As to myself, I fully concur with nascertainable part of the absolute estate given to Vice-Chancellor Hart, in his observations in Sale v. defendant into a trust, by “words not equally clear Moore, 1 Sim. 510, that the first case that construed and distinct,” by “inference, or argument from other words of recommendation into a command, made a parts of the will," contrary to the rule expressly laid will for the testator; for every one knows the distincdown by the Code. Had the testator intended to tion between them." He further adds, that “the curgire any part of his estate absolutely in trust for the rent authorities of late years has been against convertcomplainant, he would certainly have so stated, and ing the legatee into a trustee.” See 44 Am. Dec. 378, n. would have declared what part or how much money in my judgment to hold that the precatory words and he intended to set a part for her. He would have words of recommendation, found in the will of the made the extent of his bequest “clear and distinct," late General Culton, create an indefinite trust in an as clear and distinct as the devise to the defendant, unascertained and uncertain quantum of the estate of and not left it to the sole judgment of the defendant, the deceased in the hands of Mrs. Colton, for the to determine the amount or character or value of the benefit of the mother and sister of the testator, would bequest or the extent of his bounty.

be to make a will for the deceased, and not to executo The language of the will cited seems to be plain and the will made by him. intelligible. It is not the language of gift or devise or An argument is sought to be derived in favor of a the language of command.

construction creating a trust from the last two clauses It is clearly language of recommendation and re- in the will, relating to co-executors. In case the execquest, leaving the matter to the discretion and judg- utrix should desire assistance in the execution of the ment of his surviving wife to carry out his suggestion will, the testator provisionally appoints two other or not, or to such extent as seems to her best, accord-gentlemen as executors, and authorizes the executrix to ing to the dictates of her own discretion and judg- associate either one or both as co-executor or co-execument. Such is the plain import of the words, as they tors; "and in case she shall so unite either or both with would ordinarily be understood, when taken by them- her, the same provisions are hereby made applicable to selves, and considered by the great mass of English them as I have before made for her, in reference to speaking people, without reference to strained, artifi- bonds and duties and powers." It is argued that under cial, or technical rules of construction. They are, as this provision, the recommendation and request, as to it seems to me, so plain to the common mind as not to care and provision for the testator's mother and sister, need interpretation. But when we come to call in would impose the same trust on them, as is imposed other elements recognized by the rules of construc- upon Mrs. Colton, and that certainly as to them the tion heretofore adopted by the courts, for the pur- request is equivalent to a command, and being so as pose of aiding in converting the recommendation and to them, they must have the same construction with request into a command or gift, we still find that all respect to Mrs. Colton. But the character of Mrs. these elements except one, the certainty as to the ob- Colton, as executrix, and as devisee and legatee are jects, are wanting. The testator manifestly under- wholly different and distinct. These words of recomstood the force of language. He knew well what lan- | mendatiou and request were addressed to her as the guage to use to express his intention to make a devise or wife of the testator, and his devisee and legatee, and bequest. There is no uncertain sound in “I give and not as the executrix of his will as owner, and not adbequeath to my wife, Ellen M. Colton, all of the es- ministratrix of his estate. She has performed all her tate, real and personal, of which I shall die seised or trusts as executrix; the estate has been settled and possessed." If he had intended to make a gift, be- distributed to her as devisee and legatee, and she has quest or devise to his mother and sister, he certainly been discharged from her trust as executrix. So it knew in what language to express that intent, and he appears from the bill. would have said so, and how much. He has expressed, This suit is brought against her to enforce a trust in specific language, no intention to give to them vested in her as legatee for the benefit of complaindirectly, or to any one in trust for them any portion ant, and not against her in her representative characof bis estate; or if any portion what particular por- ter of executrix. So the closing passage of the will, tion or how much. He has simply used words of re- making the same provision applicable to her co-execucommendation and request to his sole devisee and tor or co-executors, in the contingency provided for, legatee, and left the whole matter in express terms to “as I have before made for her in reference to bonds, her judgment. This is the plain, natural meaning of and duties and powers," has sole reference to the his language, when taken by itself, or when considered bonds waived, and to the “duties and powers” in connection with all the other language of the will. | ferred on her as executrix. It confers no rights, or When we consider the concise, clear, and spe lan- powers, or duties upon these co-executors in the charguage of this brief will in all its other parts, it seems acter of devisees or legatees; and no argument can be impossible that the testator should have used words of derived from this passage to support the creation by mere recommendation and request to his wife, com- the court of a trust. mitting the whole matter as to the gifts and provis- Upon the views thus taken upon the construction of ions for them in express terms to her judgment; that the will, it is unnecessary to notice the other points he should bave requested her to make the gift, when argued under the demurrer. The demurrer is sushe intended to make a gift, legacy or devise to them tained, and as the whole case depends upon the conhimself, when he intended to command.

struction of the will, no amendment can be made to

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the bill that will obviate the objection taken by the make the transfer of his property to defendant, Rood, demurrer. The bill must therefore be dismissed. Aud for the purpose of protecting them against loss on acit is so ordered.

count of his defalcation, which he proceeded to do (See 37 Am. Rep. 572; 31 Eng. Rep. 820, note.—ED.) without delay. At that time there was standing to

his credit in the bank at Marquette about $91, and in

the bank at Lansing $1,423.44 He had made no reTRUST MONEY MISAPPLIED-INNOCENT HOL. mittances to the bank at Lansing after receiving the DER.

check from Neely, but had checked out some in the

mean time. He drew checks in favor of Rood for the MICHIGAN SUPREME COURT, JUNE 18, 1884.* balances in both banks, but did not tell him that

any of the money in the bank at Lansing was subject NEELY V. Rood.*

to the payment of any back taxes of Neely or other One who has left moneys in trust in the hands of a person

persons, and the jury found as a fact that Ward did who has misapplied them cannot recover them from the

not hold $469 on deposit in the Lansing bank for the latter's assignee, or from a third person, unless he can

purpose of paying Neely's back taxes, as the money substantially identify them in the hands of the person

given to him for that purpose by Neely. whom he seeks to charge.

Under these facts plaintiff claims that Ward held Money deposited on general account, and not left as a spec

this $468.38 only in trust, and tbat he could not trans. ial deposit, becomes the money of the bank, and the bank

fer title to it to Rood, but that he received it as the is then the depositor's debtor for the amount.

money of the plaintiff, and Rood is liable to him for RROR to Marquette.

money had and received, and that this action is brought upon that theory, and also upon the theory

that it is immaterial whether it was the identical F. 0. Clark, for plaintiff and appellant.

money given to Ward by plaintiff; that he could not E. E. Osborn, for defendant.

transfer any money to Rood until the money he held

in trust for others was provided for and set off. The CHAMPLIN, J. Plaintiff brought assumpsit, his dec- iufirmity of this position is that it assumes that Rood laration containing only the common counts.

received the $168.38 which Neely placed in Ward's pears that on the 31st day of December, 1881, plaintiff hands to pay his back taxes. The rule contended for gave to one John E. Ward his check on the First Na.

is well settled, that where property, held upon any tional Bank of Marquette, Michigan, for $469, payable trust to keep, to use, or invest in a particular way, is to the order of John E. Ward, county treasurer, for misapplied by the trustee, and converted into differthe purpose of having Ward pay to the auditor-gen

ent property, or is sold and the proceeds are thus ineral, at Lansing, certain back taxes upon lands owned vested, the property can be followed wherever it can by plaintiff, amounting to $468.38. John E. Ward, at be traced through its transformations, and will be this time, was county treasurer of Marquette county,

subject when found, in its new form, to the rights of but the check was not received by him in his official

the original owner or cestui que trust. Cook v. Tullis, capacity, nor was it any part of his official duty to pay 18 Wall. 341. such taxes. He kept a bank account at the First Na- But it is essestial to the assertion of a beneficial title tional Bank of Marquette, and also at the Lansing

in a trust fund that it can be clearly traced into the National Bank of Lansing. So far as appears, his hands of the party to be charged, though no more than undertaking to pay these taxes for Neely was wholly proof of substantial identity is required. In this case gratuitous. He had been in the habit of accommoda- the record shows that the money received by Ward on ting parties in this way, and kept a deposit in the Neely's check was deposited by him in his general acLansing Na'ional Bank for this purpose. When any count in the First National Bank of Marquette. It one paid him money to pay back taxes he did not for

was not placed there as a special deposit, and its idenward it to Lansing, but deposited it at Marquette, and tity was lost. It became the bank's money, and the would draw checks in favor of the auditor-general on bank became debtor to Ward for the amount. No the Lansing National Bank. The funds deposited in subsequen: appropriation of any of his money was this bank were made in this way: Whenever he re- ever made by Ward to pay Neely's taxes, and we are ceived, in the course of his business, any exchange on not called upon by this record to decide what effect Chicago, New York, or Detroit, he sent it to this

such appropriation would have had if it had been bank at Lansing, and thus saved exchange between made, and notice thereof brought to the knowledge of Marquette and Lansing. When he received the check

Rood. If when assigning to Rood the recent bank. from Neely he deposited it to his own credit in his ac

rupt law of the United States had been in force, which count with the First National Bank of Marquette, and

saved all trust property from passing to the assignee, afterward drew it out and applied the money to his Ward had been declared a bankrupt under that law, He never paid the taxes to the auditor-gen

the money which he received of Neely and deposited eral. About a week prior to January 24, 1882, Ward

in the bank would have vested in the assignee, and discovered that he was a defaulter in his office of

Neely could not have recovered it as a trust fund. county treasurer. In this emergency he went to Mr.

Thus In re Janeway, 4 N. B. 100, money was left Wadsworth, one of his sureties on his official bond, to

with Janeway by Mary Aun and Margarette Cool to whom he made known his financial condition, and

be invested for them. Iustead of making the investproposed to secure his sureties by transferring to them

ment, he employed it, with his other means, in specnall his property. During the interview he informed

lations. It was not claimed that it could be identiWadsworth that he had a balance in the bank at Lan

fied, and the court applied the rule as laid down in sing of about $1,500, and that parties had left with

Hill Trustees, that “where the trust property does him about a thousand dollars for him to pay back

not remain in specie, but has been made way with by taxes with, but did not mention Neely's name as being

the trustee, the cestui que trusts bave no longer any one of the number. This was on the 23d of January.

specific remedy against any part of his estate in bank. On the 24th, the defendant, Rood, who was also one

ruptcy or insolvency, but they must come in as genof his sureties, came to him with a request signed by

eral creditors and prove against the trustee's estate all the sureties on his official bond, requesting him to

for the amount due them. So in the Robert Hosie case, *S. C., 19 N. W.Rep. 920.

7N, B001, Judge Longyear held that when money

own use.

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