man purchase an estate with the money of a woman with whom he cohabits, a trust results to her. If a widow purchase an estate in her own name with funds of her deceased husband, a trust results to his children; 2 and so if a father purchase in his own name with funds of his children; and the rule is the same if purchases are made out of the savings of the wife's separate property, but if the purchase is made from savings out of an allowance made by the husband, or out of the wife's earnings, no trust will result.*

§ 128. In all these cases the transaction is looked upon as a purchase paid for by the cestui que trust, as the beneficial interest in the money paid belonged to him, and the identity of the money does not consist in the specific pieces of money or bills, but in the general character of the fund out of which the payment is made, and the fund may be followed so long as its general character can be identified." But when the means of identification fail, as when an executor converts an estate into money, and mixes it with the general mass of his own money, and there is no identifying

344; Kline's App. 39 Pa. St. 463; Raybold v. Raybold, 20 Pa. St. 308; Darkin v. Darkin, 23 L. J. Ch. 890; Wallace v. McCullough, 1 Rich. Eq. 426; Fillman v. Divers, 31 Pa. St. 429; Pritchard v. Wallace, 4 Sneed, 405; Resor v. Resor, 9 Ind. 347; Lench v. Lench, 10 Ves. 511; Woodford v. Stephens, 51 Mo. 443; Davis v. Davis, 46 Pa. St. 342; Tilford v. Torrey, 53 Ala. 120.

1 James v. Holmes, 4 De G., F. & J. 470.

2 Fox v. Doherty, 30 Io. 334; Roberts v. Opp, 56 Ill. 34; Musham v. Musham, 87 Ill. 80.

8 Robinson v. Robinson, 22 Io. 427.

4 Raybold v. Raybold, 20 Pa. St. 308; Merrill v. Smith, 37 Me. 394; Henderson v. Warmack, 27 Miss. 830; Farley v. Blood, 10 Foster, 354. 5 Lench v. Lench, 10 Ves. 517; Trench v. Harrison, 17 Sim. 111.

• United States v. Waterborough, Davies, 154; Goepp's App. 3 Harris, 428; Thompson's App. 22 Pa. St. 16; McLarren v. Brewer, 51 Me. 402; De Bevoise v. Sandford, Hoff. 194; Campbell v. Walker, 5 Ves. 678; Downes v. Grazebrook, 3 Mer. 200; Sanderson v. Walker, 13 Ves. 601; Overseers of the Poor v. Bank of Virginia, 2 Gratt. 544.

the particular money of the trust, the distributees or legatees have no preference over his other creditors, but they must prove their claims.1 If, however, a trustee purchase an estate with trust funds, and add funds of his own to the purchase-money, a trust will result to the cestui que trust; and the burden will be on the trustee to show the amount of his own funds in the purchase, otherwise the cestui que trust will take the whole.2 It has been said, however, in some cases that the cestui que trust has no interest in the property purchased with the trust fund in the name of the trustee, but only a lien on the property in the nature of a vendor's lien for the purchase-money, with a right to a decree for a sale to reimburse the trust fund. This is certainly one of the rights of the cestui que trust, if he elects to proceed in that manner, and he may hold the trustee responsible, if there is a loss on such sale. On the other hand, the trustee can make no profit to himself by dealing with the trust fund; and, if he makes a purchase with it, the cestui que trust can elect to treat the property as a part of the trust property, and he is entitled to all the advantages of the speculation or investment thus made with the property, in the name of the trustee. But if one who stands in no fiduciary relation to another appropriates the other's money, and invests it in real estate or other property, no trust results to the owner of the money.5 There is no doubt of this principle upon all the cases, but there is some question in the books, as to what is a fiduciary relation, as where a 1 Thompson's Appeal, 22 Pa. St. 16.

2 Russell v. Jackson, 10 Hare, 209; McLarren v. Brewer, 51 Me. 402; Seaman v. Cook, 14 Ill. 505; Farmers, &c. Bank v. King, 57 Pa. St. 202; Persch v. Quiggle, 57 Pa. St. 247.

8 Wallace v. Duffield, 2 Ser. & R. 529; Wallace v. McCullough, 1 Rich. Ch. 426.

* Hill on Trustees, 534; Lewin on Trusts, 227 (5th Lond. ed.); Lench v. Lench, 10 Ves. 511; 19 Ves. 58.

5 Hawthorne v. Brown, 3 Sneed, 462; Ensley v. Ballentine, 4 Humph.

clerk pilfered money from the store of his employer and invested it in real estate, it was held that there was no such resulting trust, that the employer could compel a conveyance of the land. But where a clerk in a bank embezzled money, and invested it in stocks in the names of his sisters as mere volunteers, it was held that a trust resulted to the owners of the money, and that equity would execute it by compelling a conveyance; 2 and this would seem to be the better opinion, as a clerk certainly holds a confidential relation to his employer. In Newton v. Porter, it was held that the holders of the proceeds of stolen property might be charged as trustees for the owner, and there would seem to be no principle to the contrary. It may depend, however, upon the extent to which the clerk is trusted.

3

§ 129. If a person standing in a fiduciary relation makes use of his position to purchase an interest in the trust property with his own funds, as a reversion, a junior or senior mortgage, or other interest from a third person; or if he purchase other property so immediately connected with the trust estate that it must be used with the trust estate, and the independent ownership of which would seriously affect the use and value of the trust property, he cannot retain the same for his own benefit, but he must hold it upon a resulting trust for his beneficiary. But a mere

1 Campbell v. Drake, 4 Ired. 94; Pascoag Bank v. Hunt, 3 Edw. 583. 2 Bank of America v. Pollock, 4 Edw. 215; post, § 135.

8 Newton v. Porter, 5 Lansing, 417; Thompson v. Parker, 3 Mason, 332; Hoffman v. Canow, 22 Wend. 285; Bassett v. Spofford, 45 N. Y. 387; Silsbury v. McCoon, 3 Comst. 579.

4 Holt v. Holt, 1 Ch. Ca. 190; Nesbitt v. Tredennick, 1 Ball & B. 46; Greenlaw v. King, 3 Beav. 9; 10 L. J. (N. s.) Ch. 129; Van Epps v. Van Epps, 9 Paige, 237; Torrey v. Bank of Orleans, 9 Paige, 649; Tanner v. Elworthy, 4 Beav. 487; Waters v. Bailey, 2 Y. & C. (N. C.) Ch. 219; Geddings v. Geddings, 3 Russ. 241; Dickinson v. Codwise, 1 Sandf. Ch. 226; Settembre v. Putnam, 30 Cal. 490; Jenkins v. Frink, 30 Cal. 586; Hall v. Vanness, 49 Pa. St. 457; Campbell v. Campbell, 21 Mich. 459;

agent, who purchases a reversion in the lands of his principal at a public sale from third persons with his own money, will not be held as a trustee, unless he purchase under some agreement to that effect, and the same rule applies to a tenant in common.2

§ 130. The rule embraces personal property as well as real estate, and if a man purchase a bond,3 annuity, stock,5 mortgage, or other personal interest, in the name of a third person, the equitable ownership results to the person from whom the consideration moves; but it is said that a resulting trust cannot be set up in personal property perishable in its nature.7

§ 131. Nor can a resulting trust be set up if it would break in upon the policy of the law, or a public statute; as, if an alien forbidden to hold land should pay the purchase-money, and take the deed to a stranger, a resulting trust in his favor would not be enforced by the courts. But a slave, who

King v. Cushman, 43 III. 31; Clark v. Cantwell, 3 Head, 202; Harrold v. Lane, 53 Pa. St. 269; Heath v. Page, 63 Pa. St. 108; Holmes v. Campbell, 10 Minn. 40.

1 Kennedy v. Keating, 34 Mo. 25.

2 Keller v. Anble, 58 Pa. St. 412; Mandeville v. Solomon, 33 Cal. 38.

8 Ebrand v. Dancer, 2 Ch. Ca. 26; 1 Eq. Ab. 382.

4 Rider v. Rider, 10 Ves. 363, and cases cited; 2 Mad. Ch. Pr. 101. Ibid.; Lloyd v. Read, 1 P. Wms 607; Sidmouth v. Sidmouth, 2 Beav. 447; Garrick v. Taylor, 29 Beav. 79; 4 De G., F. & J. 159; Beecher v. Major, 2 Dr. & Sm. 431; Ex parte Houghton, 17 Ves. 253; Creed v. Lancaster Bank, 1 Ohio St. 1.

• Ibid.; Kelley v. Jenness, 50 Me. 455.

7 Union Bank v. Baker, 8 Humph. 447.

8 Ex parte Yallop, 15 Ves. 67; Ex parte Houghton, 17 Ves. 251; Redington v. Redington, 3 Ridg. 181; Groves v. Groves, 3 Y. & J. 163; Camden v. Anderson, 5 T. R. 709; Proseus v. McIntre, 5 Barb. 425; Ford v. Lewis, 10 B. Mon. 127; Baldwin v. Campfield, 4 Halst. Ch. 891; Cutler v. Tuttle, 19 N. J. Ch. 562.

9 Leggett v. Dubois, 5 Paige, 114; Hubbard v. Goodwin, 3 Leigh, 492; Philips v. Crammond, 2 Wash. C. C. 441; Taylor v. Benham, 5 How.

1

could not acquire property, purchased land in the name of a free person with the assent of his master, and afterwards becoming free the resulting trust was enforced in his favor; and so, if the disability of the alien is removed by naturalization or otherwise, he may enforce a trust created while he was under disability.2

§ 132. Lord Hardwicke doubted whether the application of the rule was not confined to a single purchaser,3 but it has been expressly decided and long acted upon, that if several make the purchase, pay the consideration, but take the title in the name of a stranger, the trust will result to them jointly. The same rule applies if several pay the consideration, and take the title to one of their number. If the parties contribute unequally to the payment of the consideration, the trust results to each of them in proportion to the amount paid by each. In these cases, it is settled that a general contri

U. S. 270; Farley v. Shippen, Wythe, 135; Alsworth v. Cordby, 3 Mis. 32; Childers v. Childers, 1 De G. & J. 482; Phillpotts v. Phillpotts, 10 C. B. 85. But if such conveyance is not intended as a fraud upon the law, but is taken by an agent or attorney of the alien in his own name without authority, equity will protect the rights of the alien. Austin v. Brown, 6 Paige, 448; McCow v. Galbrath, 7 Rich. Law, 74.

1 Leiper v. Hoffman, 26 Miss. 615.

2 Osterman v. Baldwin, 6 Wallace, 116.

• Crop v. Norton, Barn. 179; 9 Mod. 233; 2 Atk. 74.

✦ Baumgartner v. Guessfeld, 38 Mo. 36; Wray v. Steele, 2 V. & B. 388; Ross v. Hegeman, 2 Edw. 373; Larkins v. Rhoades, 5 Porter, 196; Powell v. Monson and Brim. Manufacturing Co. 3 Mason, 590; Letcher v. Letcher, 4 J. J. Marsh. 590; Keaton v. Cobb, 1 Dev. Ch. 439.

5 Rigden v. Walker, 3 Atk. 735; Lake v. Gibson, 1 Eq. Ca. Ab. 291; Botsford v. Burr, 2 Johns. Ch. 405; Quackenbush v. Leonard, 9 Paige, 334; Jackson v. Moore, 6 Cow. 706; Stewart v. Brown, 2 Serg. & R. 461; Morey v. Herrick, 18 Pa. St. 129; Buck v. Swazey, 35 Me. 41; Powell v. Monson and Brim. Manufacturing Co. 3 Mason, 347; Pierce v. Pierce, 7 B. Mon. 433; Letcher v. Letcher, 4 J. J. Marsh. 590; Shoemaker v. Smith, 11 Humph. 81; Bernard v. Bongard, Harr. Ch. 130; Purdy v. Purdy, 3 Md. Ch. 547; Seaman v. Cook, 14 Ill. 505; Hall v. Young, 37 N. H. 134; Pinney v. Fellows, 15 Vt. 525; Brothers v. Porter, 6 B. Mon.