Wetherell v. O'Brien

Citations

• 140 Ill. 146
• 29 N.E. 904

Syllabus

<p>1. Bank deposit—whether general or special. A deposit of a sum of money was made with a bank, to be kept by the bank until it could invest the same in a mortgage on real estate, and a bank book was delivered to and accepted by the depositor, showing that the bank was-debtor to him in such sum, and the money was mixed with the other-moneys of the bank. It was held, that the deposit was a general one, and created the relation only of debtor and creditor, and no trust at-' tached to thó money so deposited.</p> <p>2. Where money is deposited with a bank and a pass book given to>the depositor showing such deposit, the entries in the pass book are evidence of indebtedness, and will amount to an implied contract on-the part of the bank to restore, not the same funds, but an equivalent, sum, as the same may be demanded by check.</p> <p>3. Same—whether depositor is entitled to preference. Money which is delivered to a bank, even though it may be for some specified purpose, as, for investment in a mortgage security, but has been mingled with the funds of the bank, the depositor will not be entitled to preference in payment above any other creditor, in the administration of the-estate of the bank on a voluntary assignment.</p> <p>4. Bailment—distinguished from debt. If the identical thing delivered is to be restored, though in an altered form, the contract is one of bailment; but where the obligation is to return other things of the-like kind and equal in value, it becomes a debt.</p> <p>5. Tbust—beneficial owner may pursue trust property if it can be-identified. Where a trustee changes the form of the trust property, the-right of the beneficial owner to reach it and compel its transfer may-still exist if the property can be identified as a distinct fund, and is not so mixed up with other property that it can no longer be specifically separated. If its identity can not be traced and shown, resort must be had to the personal liability of the wrong-doing trustee.</p> <p>6. Sa