Goodell v. Buck , 67 Me. 514 ( 1877 )

Libbey, J.

Undoubtedly a bill in equity may be maintained against an administrator of an insolvent estate for property held in trust by his intestate, which has come into his hands, if the trust property can be identified. Thompson v. White, 45 Maine, 445. McLarren v. Brewer, 51 Maine, 402.

It may be maintained for money so held as well as for other property if it can be identified. McLarren v. Brewer, supra. Taylor v. Plumer, 3 M. & S. 562.

But the administrator of an insolvent estate represents all the creditors, and to maintain a suit for money that has come into his hands and withdraw it from the assets of the estate, on the ground that the intestate held it in trust, the burden is upon the plaintiff to identify the money as the trust fund so held.

If the money was mixed and confounded in the general mass of his property by the trustee, the bill cannot be maintained. Story’s Eq. Jur. § 1259.

By the facts agreed the complainant fails to identify any money received by the defendants as the trust fund' held by their intestate. McGrilvery was a part owner of the ship Mary Groodell, and acted as ship’s husband. He received the earnings of the ship, amounting to $5578.82, and deposited the whole sum to his private credit in his general account in the Searsport bank. On March 6, 1876, he made, in his book, a dividend to the owners of the ship, but no money was set apart as belonging to each. He died March 9, 1876, having .to his credit in said bank a deposit of $1528.90, less than the dividends due the other owners of the ship. It does not appear by the facts agreed that this credit was made up, in any part, of the money received as the earnings of the ship. Acting as agent for the owners, he received money belonging to his principals, and mixed and confounded it in the general mass of his estate. Failing to identify any money received by the respondents as money held in trust by their intestate, the complainant stands no better than other creditors of the estate.

Bill dismissed.

Appleton, C. J., Dickerson, Daneorth and Yirgin, JJ., concurred.