Chapin & Gould v. Wabash Manufacturing Co.

Waterman, P. J. Appellants seek to follow the proceeds of trust property, without being able to distinguish such proceeds from funds derived from other sources. Whatever may be the rule in other States, it is established in this, that in order to pursue a trust fund, its identity as a fund must be preserved so that it can be distinguished from all other funds, or if intermingled, that the intermingling was without the consent of the cestui que trust. School Trustees v. Kerwin, Ex’r, 25 Ill. 73; Wilson v. Kirby, 88 Ill. 566; Union Nat. Bank v. Goetz, 27 N. E. Rep. 907. It is urged that the proceeds of the sale are to be charged as a lien upon the entire estate, because the proceeds of the paper were mingled by the consignee with funds derived from a sale of his own goods. The petition filed in this case states the arrangement to have been that the Wabash Company was to dispose of the goods to the best possible advantage, and account to the petitioners for the proceeds .thereof. Petitioners seem to have contemplated that the company would mingle the proceeds of these goods with the proceeds of its own property: It is said by the Supreme Court in Union Nat. Bank v. Goetz, supra: “The principle upon which a trust fund is pursued, and its proceeds held subject to the trust, is that the trustee has wrongfully, and contrary to the intention of the owner, converted it, and where there has been a commingling of funds or property, that has been done without the consent of the cestui que- trust.'’’’ To the suggestion that the assignee should have been ordered to account for the credits upon which in part the goods were sold, it is sufficient to say that it was not shown that the assignee received these credits or anything on account thereof. The judgment of the County Court, must be affirmed. Judgment affirmed.