First National Bank v. Moss ( 1899 )

GILL, J.

By a proceeding in garnishment, plaintiff sought to subject tbe sum of $186 which stands in the garnishee bank to tbe nominal credit of S. T. Moss against whom said plaintiff ha& a judgment. Tbe answer of tbe garnishee was to the effect tbat said money was not tbe individual property of S. T. Moss, but was a trust fund held by said Moss and not subject to the payment of bis debts. On a trial before tbe circuit court, without the aid of a jury, the garnishee was discharged, and plaintiff appealed.

Plaintiff’s claim to the money in question is without merit. The evidence shows, without dispute, that the fund is held by S. T. Moss as a trustee for certain specified uses designated by his mother. Mrs. Moss died in January, 1898. A few days before she died the old lady took from her trunk $280 in gold coin, which she had saved up, and turned it over to her son (the defendant) with specific instructions that he should use the money in purchasing a coffin of a certain description and in paying her other funeral expenses; that in addition he should grade the burial lot, build an iron fence around the same, erect a monument, place a stone slab on her grave, etc. Said Moss took charge of the money, placed the same to his credit in the garnishee bank, and at the time stated where it came from, that it was not his, and that it was intrusted to him for the purposes named by his mother.. The defendant Moss then proceeded, after his mother’s death, to invest the money as directed. He purchased the burial case, paid the other funeral expenses, and when this garnishment was served had bought and set up the monument. Rut just then plaintiff sued out an execution on its judgment against said Moss, had garnishment served on the bank where the money was kept, and this stopped a further execution of the trust. The evidence clearly shows that Moss held and used the fund sacred to the purposes for which it was intrusted to him, and that it was all needed to carry out the instruction of his mother.

This clearly was a fund held under a valid trust and was not subject to the debts of the trustee; it was not a gift. And being personal property, the trust may be shown by parol. Perry on Trusts [4 Ed.], sec. 86.

The judgment of the lower court was manifestly for the right party and will be affirmed.

All concur.