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Page:Harvard Law Review Volume 2.djvu/50

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aliquot part, the court could not presume it. And similar decisions have been reached elsewhere.^ Other courts have reached an op- posite conclusion.* The real difference is on the question whether it is a fair inference from the simple fact that A paid $3,ocx) and B paid $2,000, B taking the title, that the intention of the parties is that A shall have three-fifths interest in the land and B two- fifths, or, on the other hand, that the intention is that the land shall be B*s, A's only interest in it being to secure a debt to him. Consider now the case where misappropriated trust money forms a part of a purchase by the trustee. The rights which the cestui que trust has of following the property rest, not on any presumed in- tention, but on the principle devised for the protection of benefi- ciaries of trusts that the trustee cannot be allowed to make a profit for himself by dealing with the trust estate. To avoid this the cestui que trust should be allowed to regard the investment of his money in the way most favorable to him, throwing the risks on the wrong-doer. So that if the property decreases in value the cestui que trust would take only a lien on the property, but if it increases in value, he should be allowed to treat the transaction as if for his benefit, that is, he should be allowed to claim a proportional part of the property. This, though often called a resulting trust, is properly a constructive trust, being purely the consequence of rules of equity, irrespective of intention.

In Day v. Roth * also the court gave the plaintiff, whose money had been used in the purchase of the property in question, an equitable lien, -but there is nothing in the case to show that any greater right was asked.

According to the latest decisions in Pennsylvania, the cestui que trust may recover a specific share, and he is confined to that relief, for the court repudiates the whole doctrine of equitable lien. In a recent case * misappropriated trust money belonging to the plain- tiff was used in improving land, and the plaintiff was endeavoring to secure a right against the land. Gordon, J., in delivering the opinion of the court, made use of the following language : " It is said the money of these beneficiaries has been used to improve this property, and that they ought, therefore, to have a lien

1 Ames' Cas. Trusts, 289; Shaffer v. Fetty, 4 S. E. Rep. 278 (W. Va,).

  • Springer v. Springer, 114 111. 550; Bowen v. McKean, 82 Mo. 594 ; Shaw v. Shaw,

86 Mo. 594 ; Parker v. Coop, 60 Tex. in. « 18 N. Y. 448. * Appeal of Cross and Gault, 97 Pa. St. 471.