Griswold v. Griswold , 111 Ala. 572 ( 1895 )

McCLELLAN, J.—

Under the act of January 30, 1891, the complainant is a distributee of the estate of Charles Griswold, his son, who died in December, 1891, and entitled as such, the other parent of said Charles having pre-deceased him, to one half of said estate. — Acts 1890 — 91, pp. 267 — 8.

The estate consisted for the most part of damages recovered by A. L. Griswold, as administrator of said Charles, for the wrongful act or omission of a third party resulting in his death. These damages in the hands of the administrator, were assets only for the purposes of distribution — they were not subject to the payment of debts or liabilities of the decedent — and werd*' to be distributed according to the statute of distribution of force at the time the claim for damages accrued. For the purposes of this case that statute was the act of 1891, referred to above; and under it complainant was entitled, as we have said, to one-half of the fund.— Code, § 2591.

The payment of one hundred and twenty-six dollars by A. L. Griswold of money belonging to the intestate in his lifetime was, of course, payment pro tanto of the purchase money for the lot sought to be subjected to complainant’s demand. As to the other sum of about two hundred and ninety-five dollars ¡laid by A. L. Gris-wold, there can be little if any doubt that it was essentially purchase money of said lot, the facts being that it was paid in satisfaction of a mortgage on the land to secure money borrowed to pay a balance of purchase money,Uhe conveyance by the vendor and the mortgage to raise the funds in consideration of which the conveyance was made being contemporaneous, so that in reality no beneficial interest was vested in Mrs Griswold by the conveyance until the purchase money raised under the mortgage was paid to the mortgagee, and this was done with funds belonging to the estate of Charles Gris-wold. Thus it was that the purchase money for the lot .'to the extent of about four hundred and twenty-one dollars was paid by A. L. Griswold, in part as the agent of Charles and for the rest as his administrator, out of funds belonging to said Charles in one part and to his estate in the other part. A. L. Griswold was charged in both capacities with the duties of a trustee, and having violated his trust by having title in the land made to himself, and further by executing a voluntary conveyance of it to his wife, the heirs and distributees of said Charles are entitled, having clearly traced the funds of his estate into the land, to subject it to the payment of their distributive shares. Preston v. McMillan, 58 Ala. 84; Whaley v. Whaley, 71 Ala. 159.

But this result is worked out on the theory that the money so invested in the land belongs to the distributees rather than upon any theory that the trustee is indebted to them in the sum of such investment; and the remedy is given to the'end that the complainant, in a case like this, may get his money out of land standing in the * name of the respondent into the purchase of which his money has gone, and not that the complainant may collect money which the x-espondent owes him by subjecting lands belonging to the respondent to its payment. Or, in other words, the complainant must trace his money, or money which he is entitled to receive in specie, into the land, and his relief, by way of the enforcement of a trust upon the land, is measured by the amount of such money so traced by him. Now, this four hundred and twenty-one dollars which went in payment of the purchase price of the land involved here, belongs to the estate of Charles Griswold, and his administrator, ’ had he been other than A. L. Griswold, could have subjected the..lot to its payment to the estate. But the complainant does not represent or stand in the place of the estate. He is a distributee and complains in that capacity alone. As such he was entitled to only one-half the sum for which the estate might have subjected the land; about two hundred and ten dollars of, and instead of, the four hundred and twenty dollars belonged to him. True, it is shown that he is entitled to receive a larger sum out of the estate, but such larger sum is constituted by dividing into two equal parts all the assets of the estate, those that were not invested in this land as well as the funds which were so invested ; and his interest in any and every part of the trust funds is only to the .extent of his distributive share.

The city court erred in declaring a lien on the lot in complainant’s favor for the gross amount of money belonging to Charles Griswold and his estate which was invested therein. We prefer not to modify and affirm the decree here, but will remand the cause. •

Reversed and remanded.