Kennedy v. Carter

• Decision Date: 24 May 1928
• Docket Number: 6 Div. 37
• Citation: 117 So. 182,217 Ala. 573
• Parties: KENNEDY v. CARTER et al.
• Court: Alabama Supreme Court

117 So. 182

217 Ala. 573

KENNEDY v. CARTER et al.

6 Div. 37

Supreme Court of Alabama

May 24, 1928

Appeal from Circuit Court, Jefferson County; William M. Walker Judge.

Bill in equity by Benjamin Carter, trustee, against Sada H. Pope and Myra Belle Pope Kennedy. From a decree overruling a demurrer to the amended supplemental bill, respondent Myra Belle Pope Kennedy appeals. Reversed, rendered, and remanded.

See also, 210 Ala. 533, 98 So. 726.

W.H Woolverton and Thos. J. Wingfield, both of Birmingham, for appellant.

Benjamin Carter, of Washington, D.C., for appellees.

BOULDIN J.

Gustavus A. Pope, holding certain policies of life insurance payable to his estate, by change of beneficiary, made them payable to his wife, Sada H. Pope. After the death of the insured in February, 1921, the widow collected the policies.

The original bill was filed by creditors of the insured to subject the funds so acquired to the payment of his debts alleging that the transfer of the policies to his wife was voluntary and therefore constructively fraudulent as against the existing creditors of the insured.

The equity of the bill as amended by a supplemental bill was sustained in Pope v Carter, 210 Ala. 533, 98 So. 726. Thereafter a second supplemental bill was filed. The essence of this supplemental bill is to this effect:

Prior to the collection of the insurance money, Sada H. Pope had a checking account with the First National Bank of Birmingham. She deposited the insurance money in this account, and thereafter continued to deposit many other sums, her own money, and from time to time drew checks on this common account for living expenses and other purposes, making no distinction between the insurance fund and others.

About October 11, 1922, certain real estate was deeded by F.G. Sherrod to Myra Belle Pope, daughter of Sada H. Pope. The purchase money, $564.25, was paid by Sada H. Pope by check on her said account.

The supplemental bill seeks to fasten a trust upon this real estate and subject same to payment of complainants' debts. Myra Belle Pope was brought in as respondent. The appeal is from a decree overruling her demurrer to the supplemental bill as amended.

As will be noted, the bill does not claim that the specific fund derived from the insurance policies, nor any distinguishable part of it, can be traced into the property; it expressly shows a commingling of the funds in the current account at the bank.

The theory of the supplemental bill is that the insurance money was in equity a trust fund for the payment of the debts due complainants; that, on commingling this fund with others in the common account at the bank, the trust attached to the whole and to any balance in the bank from time to time; that therefore the trust attached to the fund drawn to pay for the land, and to the land itself, as against Myra Belle Pope, taking title by gift from her mother.

The doctrine that, if trust funds are commingled with other funds of the trustee, so as to become indistinguishable, the trust attaches to the whole, and that this applies to funds deposited in a bank, is recognized in Hutchison v National Bank of Commerce, 145 Ala. 196, 41 So. 143, and in Evans v. Evans, 200 Ala. 329, 330, 76 So. 95. Assuming, without deciding, the bill comes within this rule, the doctrine there asserted is in aid of the remedy to reach the trust fund actually traced to and becoming a part of the...