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Page:Harvard Law Review Volume 2.djvu/47

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trust endeavors to make good a claim to priority against the gen- eral creditors. If the trust fund were traceable to a separate piece of property the right to that property would be clear,^ and it is inequitable if the chance circumstance that the trustee has min- gled the trust money with his own should deprive the cestui que trust of all rights against the property which his money has pur- chasedy and such a distinction could only be defended on the ground that when the trust fund is confused with other money it is beyond the power of the court to give the relief which it gives when the money is not mingled. This does not seem to be the case, though formerly the Court of Chancery may have so consid- ered it. If the trust fund is traceable as having furnished in part the money with which a certain investment was made, and the proportion it formed of the whole money so invested is known or ascertainable, the cestui que trust should be allowed to regard the acts of the trustee as done for his benefit, in the same way that he would be allowed to if all the money so invested had been his ; that is, he should be entitled in equity to an undivided share of the pro- perty which the trust money contributed to purchase, — such a proportion of the whole as the trust money bore to the whole money invested.

The reason in one case as in the other is that the trustee cannot be allowed to make a profit from the use of trust money, and if the property which he wrongfully purchased were held subject only to a lien for the amount invested, any appreciation in value would go to the trustee.

It will often happen, however, that the cestui que trust cannot identify any property as being purchased wholly or in a fixed pro- portion with his money, and therefore equity cannot regard him as the owner of any property either individually or in common, and yet that he can show that the trust fund has gone to swell the gen- eral assets of the trustee's estate, for instance, if used in a general business which soon afterwards becomes insolvent. In such a case there can be no trust, strictly speaking. It is as necessary for equitable as for legal ownership that there should be fixed pro- perty as the subject-matter of it. In both cases the necessity rests rather on the nature of things than on any rule of law. It would, however, be in the highest degree unjust that the rights of the cestui que trust should be made to depend on whether his property

1 I Perry on Trasts, § 127.