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and may assess the owners of property through which or frontiug which said sidewalks are constructed, so much of the expense thereof as they shall deem just and equitable," and further providing for notice, hearing, and appeal, etc.

One defense to this suit to recover an assessment imposed on the defendant for building a sidewalk in front of his block of stores, is the alleged unconstitutionality of the said act.

It is not here questioned but that the rule is now settled that a municipal corporation may be authorized to make a local and special tax or assessment for the building of sidewalks and certain other improvements within proper village or city limits, and apportion the expense according to the benefit of the abutting premises. Allen v. Drew, 44 Vt. 174; 2 Dill. Mun. Corp., § 761; Cooley Const. Lim.

The defendant claims that by the act in question, thus leaving to a board of officers to say what in their discretion is just and equitable," uo sufficiently definite legal standard of assessment is fixed, as required by those provisions of the Constitution which were intended as a guard against unequal taxation.

Judge Dillon, in stating the general result of an extended reference to the judgment of the courts of the several States concerning local improvements and assessments, in respect thereof says:

"3. Special benefits to the property assessed, that is, benefits received by it in addition to those received by the community at large, is the true and only solid foundation upon which local assessments can rest."

The cases differ somewhat as to how the benefit may be determined, whether by the frontage or superficial area; but no such question arises here. The only question here is whether the phrase, "as] they shall deem just and equitable," is sufficiently certain as a standard of assessment. If it could be properly construed as meaning only what was just and equitable in view of the benefit of the premises fronting on the improved sidewalk, it would possibly be sufficient. The exceptions do not state upon what view or theory the assessment in question was made. If said clause is fairly liable to a different construction from the one above stated, then it furnishes no certain legal standard of assessment. Did the Court of Common Council determine the amount of this assessment in view of the benefit of the abutting land; or of its value; or of the personal convenience of the defendant; or of the ability of the defendant to pay; or of all these combined? Who can say? Why might they not under this clause assess one man in one view and another in another view? "Just and equitable" in respect to what? The words import no special limitation.

In State v. Newark, 8 Vroom (N. J.), 415; S. C., 18 Am. Rep. 729, the chief justice of New Jersey says: "The only safe rule is that the statute authorizing the assessments shall itself fix either in terms or by fair implication the legal standard to which such assessment must be made to conform. In no other way can property be adequately protected."

The act in question makes no express allusion to assessment on account of benefit; neither does it limit the assessment to the amount of benefit. Yet as we have seen, the right to assess at all depends solely on benefit, and must be proportioned to and limited by it. An improvement might cost double the benefit to the land specially benefited.

In New Brunswick Rubber Co. v. Commissioners of Streets and Sewers, 9 Vroom (N. J.), 190; S. C., 20 Am. Rep. 380, it was decided that where a statute authorized commissioners to assess the cost of a sewer upon lands benefited thereby in such proportion as they should deem just and equitable, no valid assessment could be made under the statute, as it failed to deter

mine the mode of distributing the burden. Knapp, J., in delivering the opinion of the court, says: "In State v. Mayor, etc., of Paterson, 8 Vroom (N. J.), 412, an assessment, certified to have been equitably made, was set aside as governed by no rule. It is not perceived how a legislative enactment which provides no rule or standard for making an assessment for a public work can have higher claim for validity."

That case may be regarded as extreme. A much stricter rule was adopted thau is contended for here. In our statutes providing for general taxes a fixed standard of apportionment has always been adopted, securing uniformity as far as practicable in theory at least in respect to persons and property within the jurisdiction of the body imposing the taxes.

There is greater reason for adhering to this rule in respect to provisions for special assessments. When the money of the few is taken for the benefit of the whole, it is in substance the exercise of despotic power. It is justice when an equivalent is given. In the case of a local improvement there is an equivalent for the assessment when it only equals the special benefit to the property benefited. But it is the right of the citizen to have the law, which reaches into his pocket specially, so guarded as to secure him approximate justice according to legal and constitutional principles. The language of Judge Agnew in the Washington Avenue case, 69 Penn. St. 352, is pertinent: "In questions of power exercised by agents it is sometimes the misfortune of communities to be carried, step by step, into the exercise of illegitimate powers, without perceiving the progression, until the usurpation becomes so firmly fixed by precedents it seems to be impossible to recede or to break through them."

Our Constitution provides that "every member of society hath a right to be protected in the enjoyment of life, liberty and property, and therefore is bound to contribute his proportion toward the expense of that protection."

This is less restrictive than the Constitutions of many States; but the cases which have established the rule that the statute authorizing an assessment must fix the legal standard to which it shall be made to couform, have not turned on the phraseology of constitutional provisions. It is every where treated as a general constitutional principle that no member of society shall be compelled to contribute more than his proportion. Unless this is so there is no protection against arbitrary injustice in the imposition of taxes. To secure this protection courts have held that legislative enactments must set up a standard, fix a rule to be couformed to as a guide in all cases, a uniform, certain rule, so far as reasonably practicable, and not susceptible to different applications to different individuals of the class to which it applies. If the enactment fails in this regard it is deemed fatally defective. The proposition is sound, because it is an adherence to the fundamental principles which in a constitutional government are designed to protect the individual against injustice and oppression.

We think the act in question failed to set up a standard by which all assessments for sidewalks in Vergennes must be made; that the words "just and equita ble" do not import with reasonable certainty a limitation to particular benefits to property benefited. We do not know but that one member of the common council construed the words as applying to one consideration, and another member to a different consideration; nor that any of them limited the consideration to benefits. In short, the enactment was inadequate to the purpose designed by it.

This view renders it unnecessary to pass upon the other points of defense.

Judgment reversed and cause remanded.

WILL-PRECATORY TRUSTS.

CIRCUIT COURT, DISTRICT OF CALIFORNIA. SEPTEMBER 22, 1884.

COLTON V. COLTON.*

"I

The will of David D. Colton contains this provision: give and bequeath to my said wife, Ellen M. Colton, all my 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." 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 imperative command, to make the provision for their support, but only a recommendation and request, leaving the matter to the judgment and discretion of his surviving wife.

The conditions necessary to raise a trust from words of recommendation and request in a will discussed.

THE opinion states the facts.

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

Crittenden Thornton and Stanley, Stoney & Hayes, for defendant.

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 hands 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 complainant.

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 in 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, S. M. Wilson of San Francisco, and my secretary, Charles E. Green, to be joined with her in the said executorship, and authorize 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 cannot 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 construction 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 of the testator." 2 Story Eq. Jur., § 1068.

After considering the English cases, he adds: "The doctrine of thus construing expressions of recommendation, confidence, 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. It can 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 has 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 recognized, that can be deduced from the body of the English authorities is doubtless, that stated by Lord Langdale 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 so 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. 1. 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

create a trust from words of this character."
2 Story
Eq. Jur., § 1070; see also Howard v. Carusi, 109 U. S.
733-4, citing and recognizing the rule as stated by
Story, and 2 Pomeroy Eq. Jur., § 1014 to 1017, where
the subject is well discussed.

|

inite than the provision in the will in question. And in the language of Lord Cottenham, in Finden v. Stephens, 2 Phil. 142: "Words of recommendation are never construed as trusts, unless the subject be certain." 44 Am. Dec. 376. The will in question therefore fails in this condition of certainty as to the subject, essential to the creation of a trust by precatory words, even under the English rule most favorable to such trusts now recognized.

Again under that branch of the rule stated by Story, that wherever "the prior dispositions of the property import absolute uncontrollable ownership, courts of equity will not create a trust from words of this character," 2 Sto. Eq. Jur., § 1070, this will is deficient in this one of the elements from which the intention to create a trust may be inferred. No language can more clearly and unmistakably "dispose of property " absolutely or "import absolute uncontrollable ownership" in the devisee or legatee, than the language of this will, making "the prior disposition of the property of the testator," which is, "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." And further on in his will the testator adds, "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 terms and in such manner, with or without notice, as to her shall seem best." If this language of gift, and devise, and this power to dispose of, and control does not constitute "a prior disposition of the property," which "imports absolute and uncontrollable ownership," then I am at a loss to know what would express that idea, or effect such a purpose. In this respect also the will is deficient in one of the elements suggested by Story, as necessary to create a trust from mere precatory words or words of recommendation or expressing a desire.

Upon a careful consideration of the language of the will, giving the words their usual natural signification, as they would doubtless be understood, almost if not quite universally, by ordinarily intelligent English speaking people, without reference to any strained artificial, or technical rules of construction, it appears to me that two at least, if not three of these requisite conditions negatively stated are found in the will. The "objects of the supposed recommendatory trusts" are undoubtedly "certain and definite," they are the mother and sister of the testator. But "the property to which it (the trust) is to attach is not certain or de finite." "The subject of the recommendation or wish" is surely not "certain." No specific property or amount is indicated, as the subject of the asserted legacy or trust. The testator only "requests " his general legatee and devisee, "to make such gift and provision for them as in her judgment will be best," apparently leaving the whole matter to her judgment and discretion. How is the court to determine to what property or to what amount of money the trust is to attach? Neither the property nor the amount of money is indicated; and the testator has not left the matter to the judgment of the court to determine, but in express terms to the judgment of his surviving wife, his sole devisee and legatee. The subject is therefore not certain or definite. The testator has neither indicated the particular property nor the particular amount of money out of the million of dollars in value claimed to have been left, to which the legacy or trust is to attach, nor has he indicated any rule by which the property or amount can be ascertained, other than the judgment of his surviving wife, which judgment she appears to have exercised, for she made gifts from time to time in small sums, amounting in the aggregate to $1.500. Certainly the property or amount of money to which the trust, if any there be, is to attach the subject of the recommendation or request or the subject of the trust-could not well be more uncertain or more indefinite. In the absence of words expressly creating a trust, this indefiniteness and uncertainty constitute strong evidence that the testator did not intend to create a trust. In language quoted from 10 Ves. 536: "And wherever the subject to be administered as trust property, and the objects for whose benefit it is to be administered, are not to be found in the will, not expressly creating a trust, the indefinite nature and quantum of the subject, and the indefinite nature of the objects, are always used by the court, as evidence that the mind of the testator was not to create a trust; and the difficulty that would be imposed upon the court, to say what should be so applied or to what objects, has been the foundation of the argument that no trust was intended; or as Lord Eldon expresses it in another case, Turn. & Russ., 159, 'where a trust is to be raised, characterized by uncertainty, the very difficulty of doing it is an argument which goes to a certain extent toward inducing the court to say, it is not sufficiently clear what the testator intended: ' See also Knight v. Boughton, 11 Clark & Fin. 548;" note to § 1070, Sto. Eq. Jur., p. 284-5. In the notes to Harrison v. Harrison's Admx., 2 Grat. 1, reported in 44 Am. Dec. 375, and in 2 Sto. Eq. Jur., § 1073 et seq., notes, the cases are cited illustrating certainty and uncertainty in a will, within the meaning of the condition of the rule, adopted by the courts, as to the subject of the recommendation or request; and as it ap-solutely any portion of his estate to be held in trust pears to me, few of those provisions held to be too uncertain to create a trust are more uncertain or indef

Again, are the words considered by themselves "so used as upon the whole they ought to be construed as imperative," or is there "a clear discretion or choice to act or not to act," given irrespective of other elements to be considered' The language and all the language to be considered on this point is, "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." Or in effect, 1 do not myself make any gift or any provision for them, according to my judgment, or determine how much they ought to have, but I recommend them "to her care and protection; " and I "request her to make such gift and provision for them as in her judg ment will be best."

By the express terms of the Civil Code of California, "a will is to be construed according to the intention of the testator," and the "testator's intention is to be ascertained from the words of the will, taking into view the circumstances under which it is made, exclusive of his oral declarations." "All parts of the will are to be construed in relation to each other, and so as, if possible, to form a consistent whole." A clear and distinct devise or bequest cannot be affected *by any other words not equally clear and distinct, or by inference or argument *** from other parts of the will." "The words of a will are to be taken in their ordinary and grammatical sense, unless a clear intention to use them in another sense can be collected, and that other can be ascertained." Civil Code, § 1317-18, 1321-2, 1324. It seems to me that under these rules, it is impossible to hold it to have been the intention of the testator himself to give ab

**

for complainant. The language is plain, and readily understood. taking the words in their ordinary and

grammatical sense. The testator manifestly appreciated the difference, which every one must recognize between words of absolute devise or bequest, and mere words of recommendation or request. To construe these latter words of recommendation and request as meaning precisely the same thing as words of absolute bequest would be to give them a meaning entirely different from the sense in which they are ordinarily used and ordinarily understood. The ** clear and distinct," prior absolute "devise and bequest" to the defendant of all his estate, in language which it is impossible to misunderstand, would be materially "affected by converting an indefinite and unascertainable part of the absolute estate given to defendant into a trust, by "words not equally clear and distinct," by inference, or argument from other parts of the will," contrary to the rule expressly laid down by the Code. Had the testator intended to give any part of his estate absolutely in trust for the complainant, he would certainly have so stated, and would have declared what part or how much money he intended to set apart for her. He would have made the extent of his bequest "clear and distinct," as clear and distinct as the devise to the defendant, and not left it to the sole judgment of the defendant, to determine the amount or character or value of the bequest or the extent of his bounty.

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The language of the will cited seems to be plain and intelligible. It is not the language of gift or devise or the language of command.

It is urged on the part of the claimant, that in this class of cases a wish expressed, or a simple request to the devoted and obedient wife, is equivalent to a command. This when voluntarily recognized as an obligation by the wife, in the affairs of married life, may be a very proper and salutary principle and practice in marital polity and domestic etiquette; but it is too romantic, too largely deficient in the sanctions of the obligations of positive law, too loose and uncertain to be adopted by the courts, as a rule of law, by which large estates are to be distributed in opposition to the plain, ordinary, actual matter-of-fact sense of the words of a will. As to myself, I fully concur with Vice-Chancellor Hart, in his observations in Sale v. Moore, 1 Sim. 540, "that the first case that construed words of recommendation into a command, made a will for the testator; for every one knows the distinction between them." He further adds, that "the current authorities of late years has been against converting the legatee into a trustee.' See 44 Am. Dec. 378, n. In my judgment to hold that the precatory words and words of recommendation, found in the will of the late General Colton, create an indefinite trust in an unascertained and uncertain quantum of the estate of the deceased in the hands of Mrs. Colton, for the benefit of the mother and sister of the testator, would be to make a will for the deceased, and not to execute the will made by him.

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An argument is sought to be derived in favor of a construction creating a trust from the last two clauses in the will, relating to co-executors. In case the executrix should desire assistance in the execution of the will, the testator provisionally appoints two other gentlemen as executors, and authorizes the executrix to associate either one or both as co-executor or co-executors; "and in case she shall so unite either or both 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." It is argued that under this provision, the recommendation and request, as to care and provision for the testator's mother and sister, would impose the same trust on them, as is imposed upon Mrs. Colton, and that certainly as to them the request is equivalent to a command, and being so as to them, they must have the same construction with respect to Mrs. Colton. But the character of Mrs. Colton, as executrix, and as devisee and legatee are wholly different and distinct. These words of recom

It is clearly language of recommendation and request, leaving the matter to the discretion and judgment of his surviving wife to carry out his suggestion or not, or to such extent as seems to her best, according to the dictates of her own discretion and judgment. Such is the plain import of the words, as they would ordinarily be understood, when taken by themselves, and considered by the great mass of English speaking people, without reference to strained, artificial, or technical rules of construction. They are, as it seems to me, so plain to the common mind as not to need interpretation. But when we come to call in other elements recognized by the rules of construction heretofore adopted by the courts, for the purpose of aiding in converting the recommendation and request into a command or gift, we still find that all these elements except one, the certainty as to the objects, are wanting. The testator manifestly understood the force of language. He knew well what lan-mendation and request were addressed to her as the guage to use to express his intention to make a devise or bequest. There is no uncertain sound in "I give and bequeath to my wife, Ellen M. Colton, all of the estate, real and personal, of which I shall die seised or possessed." If he had intended to make a gift, bequest or devise to his mother and sister, he certainly knew in what language to express that intent, and he would have said so, and how much. He has expressed, in specific language, no intention to give to them directly, or to any one in trust for them any portion of his estate; or if any portion what particular portion or how much. He has simply used words of recommendation and request to his sole devisee and legatee, and left the whole matter in express terms to her judgment. This is the plain, natural meaning of his language, when taken by itself, or when considered in connection with all the other language of the will. When we consider the concise, clear, and specific language of this brief will in all its other parts, it seems impossible that the testator should have used words of mere recommendation and request to his wife, committing the whole matter as to the gifts and provisions for them in express terms to her judgment; that he should have requested her to make the gift, when he intended to make a gift, legacy or devise to them himself, when he intended to command.

wife of the testator, and his devisee and legatee, and not as the executrix of his will as owner, and not administratrix of his estate. She has performed all her trusts as executrix; the estate has been settled and distributed to her as devisee and legatee, and she has been discharged from her trust as executrix. So it appears from the bill.

This suit is brought against her to enforce a trust vested in her as legatee for the benefit of complainant, and not against her in her representative character of executrix. So the closing passage of the will, making the same provision applicable to her co-executor or co-executors, in the contingency provided for, "as I have before made for her in reference to bonds, and duties and powers," has sole reference to the bonds waived, and to the "duties and powers" conferred on her as executrix. It confers no rights, or powers, or duties upon these co-executors in the character of devisees or legatees; and no argument can be derived from this passage to support the creation by the court of a trust.

Upon the views thus taken upon the construction of the will, it is unnecessary to notice the other points argued under the demurrer. The demurrer is sustained, and as the whole case depends upon the construction of the will, no amendment can be made to

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F. O. Clark, for plaintiff and appellant.

E. E. Osborn, for defendant.

CHAMPLIN, J. Plaintiff brought assumpsit, his declaration containing only the common counts. It appears that on the 31st day of December, 1881, plaintiff gave to one John E. Ward his check on the First National Bank of Marquette, Michigan, for $469, payable to the order of John E. Ward, county treasurer, for the purpose of having Ward pay to the auditor-general, at Lansing, certain back taxes upon lands owned by plaintiff, amounting to $468.38. John E. Ward, at this time, was county treasurer of Marquette county, but the check was not received by him in his official capacity, nor was it any part of his official duty to pay such taxes. He kept a bank account at the First National Bank of Marquette, and also at the Lansing National Bank of Lansing. So far as appears, his undertaking to pay these taxes for Neely was wholly gratuitous. He had been in the habit of accommodating parties in this way, and kept a deposit in the Lansing National Bank for this purpose. When any one paid him money to pay back taxes he did not forward it to Lansing, but deposited it at Marquette, and would draw checks in favor of the auditor-general on the Lansing National Bank. The funds deposited in this bank were made in this way: Whenever he received, in the course of his business, any exchange on Chicago, New York, or Detroit, he sent it to this bank at Lansing, and thus saved exchange between Marquette and Lansing. When he received the check from Neely he deposited it to his own credit in his account with the First National Bank of Marquette, and afterward drew it out and applied the money to his own use. He never paid the taxes to the auditor-general. About a week prior to January 24, 1882, Ward discovered that he was a defaulter in his office of county treasurer. In this emergency he went to Mr. Wadsworth, one of his sureties on his official bond, to whom he made known his financial condition, and proposed to secure his sureties by transferring to them all his property. During the interview he informed Wadsworth that he had a balance in the bank at Lansing of about $1,500, and that parties had left with him about a thousand dollars for him to pay back taxes with, but did not mention Neely's name as being one of the number. This was on the 23d of January. On the 24th, the defendant, Rood, who was also one of his sureties, came to him with a request signed by all the sureties on his official bond, requesting him to *S. C., 19 N. W. Rep. 920.

make the transfer of his property to defendant, Rood, for the purpose of protecting them against loss on account of his defalcation, which he proceeded to do 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 remittances to the bank at Lausing after receiving the check from Neely, but had checked out some in the mean time. He drew checks in favor of Rood for the balances in both banks, but did not tell him that any of the money in the bank at Lansing was subject to the payment of any back taxes of Neely or other persons, and the jury found as a fact that Ward did not hold $469 on deposit in the Lansing bank for the purpose of paying Neely's back taxes, as the money given to him for that purpose by Neely.

Under these facts plaintiff claims that Ward held this $468.38 only in trust, and that he could not transfer title to it to Rood, but that he received it as the money of the plaintiff, and Rood is liable to him for 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 money given to Ward by plaintiff; that he could not transfer any money to Rood until the money he held in trust for others was provided for and set off. The infirmity of this position is that it assumes that Rood received the $468.38 which Neely placed in Ward's hands to pay his back taxes. The rule contended for is well settled, that where property, held upon any trust to keep, to use, or invest in a particular way, is misapplied by the trustee, and converted into different property, or is sold and the proceeds are thus invested, the property can be followed wherever it can be traced through its transformations, and will be subject when found, in its new form, to the rights of the original owner or cestui que trust. Cook v. Tullis, 18 Wall. 341.

But it is essestial to the assertion of a beneficial title in a trust fund that it can be clearly traced into the hands of the party to be charged, though no more than proof of substantial identity is required. In this case the record shows that the money received by Ward on Neely's check was deposited by him in his general account in the First National Bank of Marquette. It was not placed there as a special deposit, and its identity was lost. It became the bank's money, and the bank became debtor to Ward for the amount. No subsequent appropriation of any of his money was ever made by Ward to pay Neely's taxes, and we are not called upon by this record to decide what effect such appropriation would have had if it had been made, and notice thereof brought to the knowledge of Rood. If when assigning to Rood the recent bankrupt law of the United States had been in force, which saved all trust property from passing to the assignee, Ward had been declared a bankrupt under that law, the money which he received of Neely and deposited in the bank would have vested in the assignee, and Neely could not have recovered it as a trust fund. Thus In re Janeway, 4 N. B. 100, money was left with Janeway by Mary Ann and Margarette Cool to be invested for them. Instead of making the investment, he employed it, with his other means, in speculations. It was not claimed that it could be identified, and the court applied the rule as laid down in Hill Trustees, that "where the trust property does not remain in specie, but has been made way with by the trustee, the cestui que trusts have no longer any specific remedy against any part of his estate in bankruptcy or insolvency, but they must come in as general creditors and prove against the trustee's estate for the amount due them. So in the Robert Hosie case, 7 N. B. 601, Judge Longyear held that when money

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