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Page:Harvard Law Review Volume 2.djvu/53

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equity has generally found favor with the courts.^ But in two States, at least, there are decisions to the contrary.^ They rest on the simple fact that the subject-matter of the trust is confused with other property. For instance, in Steamboat Co. v, Locke* the court say : " The bill states in substance that S at the time of his death had on deposit upon his individual account $898.08, and that * said deposit included and covered ' a balance of $559.35 held by said S in trust, and the prayer of the bill is, that the defendant as administrator upon S's estate may be required to pay over said balance. It is plain from these statements that the trust funds were not only deposited to the private and individual account of S, but that the funds had become in some way mixed with other funds belonging to him, for the balance claimed to be due from him to the company is considerably less than the amount remaining on deposit in the bank. The identity of the trust fund is therefore lost, and in such a case the cestui que trust can stand no better than other creditors." Such reasoning as this shows that the court had in mind the possibility of a strict trust only, and not a charge on the whole fund to the amount of the trust.

In most of the cases which come up on this point there is a complicating circumstance not hitherto mentioned. That is, the trustee, after mingling his own money and the trust money in his private account, draws on the account to a greater or less extent. Can the cestui que trust still claim to be reimbursed in full from the amount left on deposit, or should it rather be held that a portion of the fund withdrawn was his money ? It is a gen- eral rule of presumption, when it becomes important to decide to which of several deposits drafts on the account should be charged, that the deposits shall be deemed to have been drawn out in the same order in which they were put in, so that each draft when paid would be charged against the earliest deposit in the account.* This rule was applied in Pennell v, DefFell,^ the court deciding that it made no difference that some of the deposits were of trust money.

1 Third Nat Bank v, Stillwater Gas Co., 21 Am. Law Rev. 192 (Minn.) ; Rabel v. Griffin, 12 Daly, 241 ; Van Alen v. American Nat. Bank, 52 N. Y. i ; Farmers' and Mechanics' Nat. Bank v. King, 57 Pa. St 202 (see supra) ; Overseers r. Bank of Va., 2 Gratt 544 ; Nat Bank r. Ins. Co., 104 U. S. 54.

  • Neely v. Rood, 54 Mich. 134; Goodell v. Buck, 67 Me. 514; Steamboat Co. v,

Locke, 73 Me. 370; Ex parte Hobbs, 14 N. B. R. 495.

  • 73 Me. 370.
  • Clayton's Case, i Mer. 608. * 4 De G., M. & J. 372.