Barwick v. White

George P. White, as the *288administrator of John C. Barwiek, sold his laud hy order of the Orphans Court for payment of debts, giving the usual bond and surety for the application of the proceeds. The sale was made to Simeon J. Pennewill for $291.88,part of which was paid in cash and a note given for the balance, $140.28, payable to George P. White, or order, the same being part of the proceeds of sale of Barwick’s land. This note was assigned,after White’s death, to William Cannon, and by him collected of Pennewill.

The bill is filed by an administrator de bonis non of Bar-wick, claiming this note as a trust fund in the hands of White’s administratrix, or her assignee Cannon, stating a demand on him before collection. It proceeds on the ground of a breach of trust by Mrs. White, and of legal fraud by both her and Cannon,in diverting to the payment of White’s debts a fund which on its face belonged to Bar-wick’s estate.

The answer denies that the complainant, as the representative of Barwick’s estate, has any standing in a court of equity against' White’s representative, as there is a clear legal remedy on White’s bond; and it denies that he has a remedy any where for the proceeds of sale of land where such land was sold by another. It denies also that any investigation can be made as to the fraud in converting the note to an improper purpose, without malting Pennewill a party.

As long as the proceeds of trust property can be traced, as separate from other property of the trustee,it is liable to the trust purposes. George P. White, as administrator of Barwiek, had no right to the land, or its proceeds, until that land had been lawfully sold under the order of the Court; and the proceeds came to his hands for the purpose for which it was sold,viz : the piayment of Barwick’s debts. While, therefore, the proceeds of sale of this land were represented by the note of the purchaser, expressing on its face that it was trust property, it remained trust property, *289and belonged to the estate of Barwick in the hands of his administrator, White, as a trustee for Barwick"s creditors, and, after they were paid, as trustee for his devisee or heirs at law. In that condition was this fund at the death of George P. White, who had received more than enough money from the sale of the land to pay the balance appearing due to him on his second administration account after deducting the payments made by Mrs. Barwick for sinking this balance! Indeed, from the proof in this cause of such payments, there was but $44 overpaid by him at the time he got the order to sell Barwiek’s land. George P. White, therefore, had no claim, personally, to the proceeds of sale beyond this, and he was a trustee for the balance ; and these proceeds,embraced in this note,are traceable and distinguishable. It was not in the power of his representative, Mrs. White, nor of Mr. Cannon, her agent or assignee, to change the character of this fund orbring it into White’s estate. It was a trust fund and belonged to other parties. The attempt to change it to a personal fund, belonging to White and falling into his estate, is inequitable toward those who have the rightto the fund or to its application,and is such a fraud (in a legal sense) as this Court will prevent or redress.

To the proper exercise of this jurisdiction it is not necessary that the heirs or devisees of Barwick,or that Pennewill, should be made parties. ’ The fund in its present state belongs to the personal representative of Barwick, applicable to debts, if there be any, and only to heirs or devisees after these are satisfied. There was no necessity for making Pennewill a party; for he has paid the note and no decree is sought against him.

I am, therefore, of opinion that the complainant is entitled to a decree for the payment of $140.28, the amount of the note and interest, with costs.

Decree accordingly.