Page:Harvard Law Review Volume 2.djvu/48

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HARVARD LAW REVIEW.

is distinguishable from the general mass of the trustee's property, or indistinguishable. Though indistinguishably confused, still his money or his money's worth is there, and if the machinery of the court can work it out he should be enabled to get at it. Equity accomplishes justice in this case by giving the cestui que trust a lien on the property of the trustee, analogous to the vendor's lien, — a right to be paid from the estate in priority to the general creditors.

This latter right the cestui que trust always has, even though he may also be able to follow his money into a certain investment.^ In case the investment has turned out badly, it would be for his advantage not to regard the investment as having been made for him, not to treat it as his property, but to assume that it has been wrongfully converted, and take a lien on what was pur- chased with his money and come in with the general creditors for the deficit occasioned by the depreciation of the investment*

The dii0ferent classes of cases involving these points will now be examined somewhat more particularly.

If a trustee purchase real estate partly with his own money and partly with trust money, it is universally allowed that the cestui que trust has a claim in equity against the land, but the exact nature of the right allowed is not entirely uniform. If the property pur- chased should increase in value, it is for his interest to obtain an undivided share of it, rather than a lien on the property for the bare amount of the trust money put in. If the proportion which the trust money bore to the purchase money is known or ascer- tainable, the larger right should, it seems, be allowed, as the trustee's estate otherwise benefits by the misappropriation. The question has not, however, been very fully discussed and the decisions are not uniform. In England the point can hardly be considered entirely settled, but in Knatchbull v, Hallett,* Sir George Jessel, M. R., after speaking of the cestui que trust's right " to elect either to take the property purchased, or to hold it as a security for the amount of the trust money laid out in the pur- chase," makes the dictum : " But in the second case, where a trustee has mixed the money with his own there is this distinction, that the cestui que trusty or beneficial owner, can no longer elect to

1 I Perry on Trusts, § 128.

• Riehl V, Evansville Foundry Assoc, 104 Ind. 70.

« 13 Ch. D. 696, 709.