In re the Trust Estate of Coleburn

In the Circuit Court, Judge Dennis, on Saturday, filed an opinion in the matter of the trust estate of Julius M. Colebum and others. In 1887 John G. Mitchell was made trastee by Paul Colebum. Coleburn had a life tenancy in the estate. George M. Bokee and Wm. H. Pope were sureties on Mitchell’s bond. Mitchell and Cole-bum, it was alleged, wasted a part of the estate. Mitchell was removed from the trusteeship and Geo. G. Hooper succeeded him in 1881. Hooper then asked for an order to sue Mitchell’s bond, receiving in the meantime the income on the estate, and paying it over to Coleburn. Bokee applied for a restraining order, which the Court granted.

The opinion of Judge Dennis is as follows: “When the new trustee was made acquainted with the fact of the cestuique trust participation in the devistavit committed in this case, it became his primary duty to apply whatever money came into his hands belonging to the cestuique trust to making good the loss to the trust estate caused by the latter’s misconduct. The new trustee was not relieved of this obligation, because of the order of the Court which directed him to bring suit for *21the amount of the devistavit against the bond of the old trustee. He was still bound to retain any funds of the cestuique trusts that came into his hands in reduction of the latter’s debt to the estate, and in the suit upon the bond the old trustee and his sureties would have been entitled to a credit for the amounts so applied. Having failed to do this, and having paid over to the cestuique trust the income of the estate after knowledge of the devistavit committed by him, the trustee must make good to the sureties on the bond of the old trustee the full amount so paid by him, the sureties having paid in full the amount of the devistavit.