Henderson's Adm'r v. Henderson's Heirs

STONE, J. The case of DeJarnette v. DeJarnette, 41 Ala. 708, was conceded to be a hard case. Tet, because the trustee had commingled the trust funds with his own, so that the separate identity of the former could not be traced, he was held accountable for them as for a conversion, at the option of the beneficiary. That principle was fortified by a citation of authorities which we need not repeat here, — See, also, McLeroy v. Thompson, 42 Ala. 656. And it has been repeatedly held that if a trustee deposits trust funds in his own individual name, to his own individual credit, blended [585] witb bis own private funds, this constitutes a commingling of the funds within the rule declared above. « The deposit account of appellant, which was put in evidence, shows that when he made his annual settlement in May, 1861, he had to his individual credit with the insurance company a deposit of about $2,300. He had no account as administrator. He had made no deposit within a year before, and he made no new deposit till April, 1868. Of the $2,300 to his credit in May, 1861, he drew $1,300 during the months of June and July, 1861, and September, 1862. This balance remained to his individual credit until 1864, when he checked it out. The loss, with which he seeks to charge the estate, according to the proof, was $1,000 of this $2,300. However oppressive it may seem under the facts of this case, the administrator cannot, under the long settled rules of law, obtain the credit he claims. The testimony objected to was wholly immaterial, and did no harm. Affirmed.