Page:Harvard Law Review Volume 2.djvu/57

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He has ^20,000 of property of his own, and is indebted ^30,000. He takes the trust money, and with it reduces his indebtedness to ^20,000. Now if B is allowed a lien on A's private property there will be but $10,000 left for the other creditors, from which they will get fifty cents on the dollar, whereas, if A had not touched the trust money, there would have been $20,000 to pay $30,000 debts, or sixty-six cents oi> the dollar.

It was suggested in a dissenting opinion in McLeod v, Evans,^ that the cestui que trust should receive priority to the extent which the estate had benefited by the misappropriation, irrespective of whether any part of the trust money was in any form in the es- tate ; but it is believed that this is mistaking the true reason for allowing priority, which is brought out in a very recent case in New York.2 The court say : "The courts below seem to have pro- ceeded upon a supposed equity springing from the circumstance that, by the application of the fund to the payment of White's creditors, the assigned estate was relieved pro tanto from debts which otherwise would have been charged upon it, and that thereby the remaining creditors, if entitled to distribution, without regard to the petitioner's claim, will be benefited. We think this is quite too vague an equity for judicial cognizance, and we find no case justifying relief under such circumstances."

" If it appears that trust property has been wrongfully converted by the trustee and constitutes, although in a changed form, a part of the assets, it would seem to be equitable and in accordance with equitable principles that the things into which the trust pro- perty has been changed should, if required, be set apart for the trust, or, if separation is impossible, that priority of lien should be adjudged in favor of the trust estate for the value of the trust pro- perty entering into and constituting a part of the assets. This rule simply asserts the right of the true owner to his own property."

Samuel Williston, Harvard Law School.

1 66 Wis. 401.

• Matter of Cavin v, Gleason, 105 N. V. 256.