School Trustees v. Kirwin

Breese, J. There can be no doubt, from the evidence, that the money French received of West and Moore at Geneva, on the 20th of March, 1858, on the check or order of David Higgins, the school commissioner, was deposited by French in Kirwin’s bank in his own name, and amounted to twelve hundred and ninety-two dollars and thirty-seven cents. The school fund had no account in that banking house, French, the treasurer, making all his deposits of school money to his own credit. Of this money, received on Higgins’ check, on the 20th of March, one bag of silver, containing two hundred and seventy-five dollars, is identified by witnesses as being in the bank vault, after the death of Kirwin and French, by the tag or label with the name of W. B. West upon it, and tied to the bag, and was paid over to Stevens, the administrator of Kirwin. For this amount the trustees of schools of the township, the appellants here, have obtained a decree against the estate of Kirwin. From this decree the trustees have taken this appeal, insisting that the Circuit Court should have decreed-the whole balance of the amount deposited by French with Kirwin. The facts show that French was the clerk and teller in Kirwin’s banking house, and that Kirwin was one of the securities of French on his bond as township treasurer, and became so with the distinct understanding and agreement with French that he should deposit in- his bank all the moneys he received as school moneys. It is idle to pretend that Kirwin did not know that the large deposits made by French, from time to time, were school moneys, for it is proved that French had little or no means beyond his salary, which was absorbed by his household expenses, and no resources, or very small, from any other quarter. He was not a moneyed man, or accustomed to handle or deal in large sums on his individual account, during the time he was treasurer, and in Kirwin’s employment in his bank. The conclusion is irresistible that Kirwin knew that these moneys belonged to the township school fund, and he allowed them to be mixed up with the general moneys of the bank, and to be deposited in the name of French, as his own proper funds. Kirwin was then a voluntary trustee of these funds. An important inquiry of a court of equity is, whether property, bound by a trust, has come into the hands of persons who are either bound to execute the trust, or to preserve the property for the persons entitled to it. If the cases on this subject are adverted to, it will be found that trusts are enforced, not only against those persons who are rightfully possessed of trust property, as trustees, but also against all persons who come into possession of the property bound by the trust, with notice of the trust; and whoever so comes into possession, is considered as bound, with respect to that special property, to the execution of the trust. This court held this doctrine in the case of Norton et al. v. Hixon, post. It is not necessary, if the trust be moneys, that the particular coin or kind of money, or the individual pieces, shall be identified, in order to pursue it, but its identity as a fund must be preserved so that it can be distinguished from all other money. So long as it can be followed as a separate and independent fund, distinguishable from any other fund, it can be pursued. U. States v. The Inhabitants of Waterborough, Daveis Cir. C. R. (Maine District) 159. This is the ground chiefly relied on by the appellants for an enlarged decree in their behalf. To this they would be entitled, if the facts established the identity of this fund, which they do not. When it w.as received into the bank, the money was mixed up with the money of the bank, and its identity as a fund thereby lost. It never appeared on the books of the bank as a part of the school fund or school money. All the money found in the vault of the bank, at Kirwin’s death, which was but two days prior to French’s death, was seven hundred and fifteen dollars and forty-five cents, none of which was identified as school funds, except the two hundred and seventy-five dollars in a certain marked bag. The means of ascertaining the identity of this fund having failed, by the money having been mixed and confounded in a general mass of property of the bank, of the same description, the right to pursue it must also fail. Had it been proved that a fund in separate bags or parcels was found in the bank, of the precise amount received by French from the collector, a presumption might reasonably arise, that they were the identical school moneys. No such proof is made, nor is any fact established from which any other inference can be drawn, than the one drawn by the court, and for which the decree passed. There were no costs taxed against the school trustees; and as to those awarded against Stevens, administrator, they are to be paid in due course of administration, all which is in conformity with law. The decree is affirmed. Decree affirmed.