Gianella v. Momsen

Winslow, J. It appears from the affirmative allegations of the complaint that the trust funds of the plaintiff were wrongfully converted by Day and mixed with his own funds, .and that, while so mixed and confounded with Day’s own funds, the assignment to Momsen was made, and a large amount of property passed into the assignee’s hands, among-which were the unidentified proceeds or product, either in money or property, of said trust funds. It is very clear, from the statements of the complaint, that the trust funds cannot be identified as monev, nor can they be traced into [478] any specific property in the hands of the assignee. It was-said by this court in Burnham v. Barth, 89 Wis. 362: “ That, in order that the beneficiary or owner of a trust fund maybe able to regain it out of the estate of a defaulting and insolvent trustee, he must be able to trace it into and satisfactorily identify it in the hands of the receiver or assignee-of his estate, or its substitute or substantial equivalent; that when the trust fund has been dissipated, or so confounded and mixed up with the property and estate of the trustee that it cannot be traced or identified, there remains nothing to be the subject of the trust, and the owner of the fund or property is not entitled to prove for it as a trust debt and-obtain a preference over the other creditors of the insolvent estate. . . . When the trust fund cannot be identified or traced into some specific estate or substituted property,, and the means of' ascertainment fail, the trust wholly fails, and the party can only prove as a general creditor.” The case presented by the complaint is just the case thus generally defined, and it follows logically that the demurrer to the complaint was properly sustained. By the GovM.— Order affirmed.