Key v. Boyd

GOLDTHWAITE, J. Without considering the general question to which the plaintiff in error calls the attention of the court, we are clear the loss, under the circumstances disclosed, is not a proper charge against the estate for another reason. That is, because the interest which the executor now pretends to have in the note and mortgage of Holt, on account of the estate, is not for the whole sum, and as the entire note was traded for by the executor, he must be considered as solely interested. It is the duty of a trustee to keep the trust funds separate from his own, so as to be capable of identification, and if he mixes them with his own, it is said to be clear law, they are considered as his own. [Trecothie v. Austin, 4 Mason, 29.] The fact that the note of Holt was traded for by the executor, is decisive that the transaction must be viewed as being made on his own account, and that the loss must fall on him alone. Decree reversed and remanded.