Shute v. Hinman

• Decision Date: 20 March 1899
• Citation: 34 Or. 578,56 P. 412
• Parties: SHUTE v. HINMAN.
• Court: Oregon Supreme Court

56 P. 412

34 Or. 578

SHUTE v. HINMAN.

Supreme Court of Oregon

March 20, 1899

Appeal from circuit court, Washington county; Thomas A. McBride Judge.

Proceeding by J.W. Shute, administrator, against A. Hinman, assignee. From a decree for plaintiff, defendant appeals. Reversed.

S.B. Huston, for appellant.

Bagley & Brown, for respondent.

BEAN J.

This is a proceeding to require the assignee of the estate of Anton Pfanner, insolvent, to pay the administrator of Martin Manning, deceased, $879.84 out of the moneys coming into his hands as assignee, on the ground that it is a trust fund. The facts are that on February 3, 1896, Pfanner was appointed and qualified as administrator of the estate of Martin Manning deceased, and acted as such until June, 1897, when he was removed by the county court, and the present petitioner appointed in his stead. Soon after his appointment as administrator, Pfanner purchased and assumed control of a banking house at Forest Grove; and all funds received by him belonging to the estate were deposited in the bank to his credit, and commingled with and used as a part of the general funds of the bank in the usual course of business. On June 10, 1897, the bank failed, and Pfanner made a general assignment for the benefit of his creditors. He had in the bank vault at the time the sum of $1,755.69 in cash, and was indebted to the Manning estate in the sum of $879.84 for moneys collected by him as administrator. The present administrator sets out these facts in his petition and prays an order directing the assignee to pay over sum to him out of the funds on hand at the time of the assignment. The petition was granted, and the assignee appeals, claiming that the evidence is insufficient to establish the right of the Manning estate to a preference over the other creditors of Pfanner.

The rule in this state is that one claiming a preference over other creditors, on account of trust property, must either identify the specific property, or the proceeds thereof, or show that the property of the debtor which he seeks to affect with such lien or preference includes the trust property. The rule formerly prevailed that the claimant must identify the particular property or the proceeds thereof; but this has been so modified that, although its identity has been completely lost, equity will afford relief if it is shown to have been mingled into a common mass, and forms a part thereof....