Equity Jurisdiction, To follow trust fund. Trust. Equity Pleading and Practice, Appeal.
The treasurer of a subordinate lodge of a fraternal beneficiary corporation deposited funds which he received by virtue of his office in a bank account in his own name in which also were mingled moneys received by him from various other sources. His successor as treasurer being elected, he admitted to the secretary of the corporation as well as to his successor that the funds of the lodge were in the bank account and stated that he stood ready to deliver them to his successor, but he died before he could do so. At the hearing of a suit in equity by the corporation against the executrix of his will to impress the fund with a trust in its favor and to compel its transfer, it appeared that, by a mistake of the treasurer his account at the bank had been overdrawn about three months before the election of his successor, but that "as soon as it was discovered that he had made the mistake the amount was paid by him to the" bank, and that thereafter he had on deposit at the bank a sum of money in excess of the fund claimed by the plaintiff. A final decree was entered for the plaintiff. Held, that the overdraft did not act as a dissipation of the fund, and that the decree was justified.
Where, in a suit in equity the final decree awards to the plaintiff a certain sum claimed by him but awards him no interest, on an appeal by the defendant alone, the question, whether the plaintiff should have been awarded interest, is not before this court.
LORING, J.
This is a bill in equity brought by a fraternal beneficiary corporation to compel the transfer to it of $1,137.27. The defendants are the executrix of the will of Manuel J. DeAvellar and a trust company in which DeAvellar during his lifetime had a deposit account in his own name. The bill is based upon the theory that this $1,137.27 was the amount of trust moneys belonging to the plaintiff which it can in fact trace to the deposit account under the doctrine fully explained in Hewitt v. Hayes, 205 Mass. 356. The judge found for the plaintiff, and the case comes before us on his findings without the evidence on which they were made.
It appears that DeAvellar died on January 1, 1911, and that on October 25, 1910, he overdrew the deposit account in question through a mistake in subtraction in figuring out the amount then on deposit. But the judge found that "as soon as it was discovered that he had made the mistake the amount was paid by him to the company," and that "there was an intention on his part to replace it, which he had a right to do." We interpret this to be a finding that DeAvellar immediately corrected this mistake and deposited to the credit of this account such sum as was necessary to leave in this account the plaintiff's money intact which up to this time had been in this account untouched. This did not act as a dissipation of the trust fund. On that point Perkins v. Perkins, 134 Mass. 441, is decisive.
The defendant has argued that DeAvellar had no right to correct this mistake because he was insolvent at the time. As to that it is enough to say that it does not appear that he was insolvent at that time. In fact there is no finding that he was insolvent at any time.
The other contentions argued by the defendant are concluded by the findings of the judge which in the absence of the evidence on which they were made are final.
The plaintiff has asked that the decree be modified so as to give it interest on its money. But the only appeal taken from the decree was taken by DeAvellar's executrix. Whether the decree ought to have given the plaintiff interest is not before us.
The decree must be affirmed with costs to be paid by the executrix.
So ordered.