Fleming v. Shay

KERRIGAN, J.

This is an appeal from a judgment entered upon an order sustaining a demurrer to an amended complaint.

Substantially and so far as material the allegations of the amended complaint are as follows: That prior to the year 1895 the plaintiff had intrusted to William Hale for the purpose of investment various sums of money, which it was agreed should be held by William Hale in trust, and the profits divided equally between them; that in said year an accounting was had, and upon such accounting it was agreed and determined that Hale at that time had in his hands, in trust for the use and benefit of plaintiff, the sum of $5,000, and that it was further agreed that this sum should remain in the hands of Hale, to be reinvested under the same conditions and trust as before, to wit, Hale to retain in trust for the benefit of plaintiff the $5,000 and one-half of all the profits arising out of or on account of said fund. “That from time to time since the said year of 1895 up to the time of the death of said William Hale, said William Hale, deceased, as trustee, acknowledged and stated to the said plaintiff that the said $5,000.00 held in trust by the said William Hale, deceased, for the use and benefit of said plaintiff, was invested in and

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used for various purchases of real property; that said $5,000.00 was producing good returns, and that the said trust fund of $5,000.00 and the one-half of all the profits accruing from the investments of said $5,000.00 would be paid over to the plaintiff herein whenever he, the said plaintiff, so demanded, but that it would be to the benefit of the said plaintiff if he, the said plaintiff, would allow the said money to remain in trust with the said William Hale, deceased, and to be used by said William Hale, deceased, and invested as aforesaid. ’ ’

That by reason of the request of Hale plaintiff allowed the trust fund to remain in the latter’s hands for the purpose just set forth. That Hale never repudiated said trust and no demand was ever made on him by plaintiff for an accounting, and that the trust fund was in his hands at the time of his death in the year 1908.

That the fund was so commingled with the moneys and property of Hale as to make it impossible for plaintiff to trace the fund. That plaintiff presented a claim against the estate of Hale, which was rejected. Thereupon the present action was brought.