Hubbard v. Alamo Irrigating & Manuf’g Co.

• Decision Date: 09 June 1894
• Citation: 37 P. 625,53 Kan. 637
• Parties: HUBBARD v. ALAMO IRRIGATING & MANUF’G CO.
• Court: Kansas Supreme Court

37 P. 625

53 Kan. 637

HUBBARD v. ALAMO IRRIGATING & MANUF’G CO.

Supreme Court of Kansas

June 9, 1894

Concurring opinion.

For principal opinion, see 36 P. 1053.

OPINION

HORTON, C. J.

I think that the principle announced in Peak v. Ellicott, 30 Kan. 156, 1 P. 499, and Ellicott v. Barnes, 31 Kan. 170, 1 P. 767, ought not to be extended. In Peak v. Ellicott, supra, it was observed that "Wherever a fiduciary relationship exists, and money coming from the trust lies in the hands of the person standing in that relationship, it can be followed by the principal, and separated from any money of the wrongdoer." If Lord had real estate at the time of his death, which was acquired before the sale of any of the bonds referred to in the petition, no trust can be impressed thereon to repay the Alamo Company for any of the proceeds of the bonds received by Lord in his lifetime. District Tp. of Eureka v. Farmers’ Bank v. Fontanelle (Iowa) 55 N.W. 342; McClure v. Board (Colo.) 34 P. 763. In order to establish a trust, it must be shown that the estate in the hands of the administrator has been actually augmented by the trust fund; otherwise, the rights of the company are not superior to those of the general creditors of the estate. If a trust is to be established, it must be on the ground that the proceeds of the bonds not paid over at the death of Lord have increased his estate, and that such increase came into the hands of the administrator.