Kent v. Kent
| Decision Date | 26 April 1917 |
| Docket Number | 3000 |
| Court | Utah Supreme Court |
| Parties | KENT v. KENT, et al |
Rehearing Denied May 21, 1917.
Appeal from District Court, First District; Hon. J. D. Call, Judge.
Action by Emeline H. Kent against John D. Kent and others.
Judgment for defendants. Plaintiff appeals.
AFFIRMED.
John A Bagley for appellant.
Richards Hart & Van Dam for respondents.
The plaintiff commenced this action in equity to impress certain property with a trust and to recover the trust fund. In her complaint she alleged that:
The defendants are the executors of the estate of one Sidney B. Kent, deceased; "that in 1881 the plaintiff was the owner of certain real property in Davis County, Utah; that at that time it was agreed by and between the plaintiff and Sidney B. Kent, deceased, that said property should be sold by Sidney B. Kent, and that he should invest the proceeds thereof in real estate and personal property in Cache County, Utah and hold the same in trust for the use and benefit of the plaintiff; that pursuant to the said agreement between the plaintiff and Sidney B. Kent the said Davis County property was sold by Sidney B. Kent for the sum of $ 4,500 in cash, which said amount was received by Sidney B. Kent as trustee, pursuant to said agreement to be invested in property in Cache County, Utah for the use and benefit of the plaintiff; that afterwards and during the lifetime of the said Sidney B. Kent, deceased, but the real dates are unknown to the plaintiff, the said Sidney B. Kent, deceased, used the said $ 4,500 in purchasing, acquiring, and improving real property and in purchasing personal property in Cache County, but the said Sidney B. Kent, deceased, in purchasing and improving said property, mingled the said $ 4,500, which he held in trust for the plaintiff, with his own private funds, and so used and invested said trust fund that it cannot now be traced and cannot be segregated from the private property of the said Sidney B. Kent, deceased; that by reason of the said agreement between plaintiff and the said Sidney B. Kent, deceased, a trust was created in favor of the plaintiff with Sidney B. Kent, deceased, trustee, and the said $ 4,500, thereby became a trust fund; that Sidney B. Kent died on or about the 8th day of December, 1914, and at the time of his death was a resident of Cache County, state of Utah and at the time of his death he held the said $ 4,500 in trust for the use and benefit of the plaintiff; that the said Sidney B. Kent never, at any time, denied or repudiated said trust; that the said Sidney B. Kent, during his lifetime did not, and the defendants have not, paid to the plaintiff the said $ 4,500 or any part thereof."
Plaintiff also alleged that she had duly presented her claim to said executors for allowance, and that they had rejected the same. She prayed judgment that the trust be established, and that she recover judgment for said $ 4,500 with legal interest. The defendant, M. E. Kent, demurred to the complaint: (1) That it "does not state facts sufficient to constitute a cause of action"; (2) that the action is barred; and (3) that the complaint is uncertain and ambiguous in certain particulars. The two other defendants filed an answer to the complaint, which, however, has no bearing upon the case. The district court sustained the general demurrer, and, the plaintiff electing to stand on her complaint, judgment dismissing the same was duly entered, from which she appeals.
The only error assigned is that the district court erred in sustaining the demurrer. The only matter, therefore, that concerns us on this appeal is the correctness of the ruling of the district court in sustaining the general demurrer. It will be observed that the plaintiff in her complaint, among other things, alleges that:
"Deceased, in purchasing and improving said property, mingled the said $ 4,500 which he held in trust for the plaintiff with his own private funds, and so used and invested said trust fund that it cannot now be traced and cannot be segregated from the private property of the said Sidney B. Kent, deceased." (Italics ours.)
Suppose, after a trial of a case in which it is sought to impress a certain fund or property with a trust, the court should find from the undisputed evidence that the facts were precisely as they are alleged to be in the foregoing statement, would not such a finding completely dispose of the claim that there was any property or fund upon which a trust could be impressed? Such a finding would conclusively show that the claimant had no better right to any specific property of the deceased's estate than any general creditor would have.
The courts have frequently considered and passed upon claims like the one before us, but we know of no case where it has been held...
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