The opinion
On Rehearing.
TURNER, J.
It is urged that there is no evidence reasonably tending to prove that this fund was lost, and hence the court erred oin holding that it was. While this does not appear in their assignments of error, counsel for plaintiff in error urge it as though it did, and in their briefs on rehearing again seek to go into that question. They contend that 'the modern rule is, not as stated in the opinion, but as stated in Lowe v. Jones, 192 Mass. 94 , 78 N. E. 402 , 6 L. R. A. (N. S.) 487, 116 Am. St. Rep. 225 , 7 Ann. Cas. 551, that:
“It is now held that, if the proceeds of trust property can be traced into a particular fund, the trust may ibe established and enlforced as a charge upon the fund.”
And that (quoting, they say, from Lathrop v. Bampton, 31 Cal. 17 , 89 Am. Dec. 141 ):
“'So long as the fund is greater than the amount of the trust fund, it will, in the absence of any showing to the contrary, -be presumed to be held in trust.”
And, taking this as the rule, they seek to show us that the one-half of the lease money collected by Soliss, belonging to Lucy and Nellie Brown, can be traced into the assets of his estate or into the fund in the hands of Joseph Bruner, as guardian of Lena Coser, and hence, they say, said Ifund is not lost; and hence, not being lost, plaintiff in error, as guardian for Lucy and Nellie, cannot be surchargeable therewith. Assuming the correctness of the rule contended for, and still assuming that fund to be a trust fund and tha't the point is properly 'before us, 'we repeat, the fund has been lost lin the mutations of business, and that, from the record, it is impossible to tell whether it passed into the hands oí •the executrix of ‘Soliss and into the assets of his estate, or into the hands of the guardian of Lena Coser as a- part of the assets of her estate, or whether it has become absorbed in the estate of both. It cannot be successfully maintained that it can be traced into the estate of Soliss for the reason the record discloses the only evidence on this point to be that, while his estate was solvent, there is no evidence of its value and no claim that it exceeded $5,000. And, besides, no claim that the •fund in controversy passed into the assets thereof was made in the trial court. Neither can it be successfully maintained that this fund can be traced into the hands of the guardian of Lena Coser as a part of
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her estate so as to make it a charge upon that fund. This for the reason the record discloses the only evidence upon that point to be that her estate at the death of 'Soliss was solvent with “several thousand dollars loaned out at interest,” which, together with $4,500 cash on hand, was more than the amount of this fund. As the record fails to disclose, and there was no attempt to prove, that the fund in controversy was traceable into the assets of said estate, we adhere to the opinion that said fund cannot be made a chrge upon it.
It folldws that the modern doctrine contended for, in effect, that the confusion of trust property wrongfully converted does not destroy the equity entirely, but that, when the funds are traced 'into the assets of the' unfaithful trustee, or one who has knowledge of the character of the funds, they become a charge upon the entire assets with which 'they are mingled, has no application to the facts in this ease.
It is further contended that, on the undisputed facts, plaintiff in error was not a “creditor” with a “claim arising upon a contract” against the estate of Soliss within the contemplation of Rev. Laws 1910, § 6338, which provides:
“If a claim arising upon a contract heretofore made be not presented within the time limited in the notice, it is barred forever. * * * ”
And section 6336, which provides:
“Every executor or administrator must, immediately after his appointment, give notice to the creditors of the decedent, requiring all persons having claims against said estate to present 'the same. * * * ”
And that the court erred in holding that he Was and that the so-called claim was lost and barred because not presented within the four months required by said statute. Not so. When Soliss received the share of this lease money 'belonging to Lucy and Nellie, inasmuch as he, in equity and good conscience, had no right to retain it, a promise to pay it to plaintiff in error as guardian of Lucy and Nellie arose bj^ implication sufficient to establish between them the relation of debtor and creditor; that is, 'Soliss was their debtor and they creditors of his estate, after his death, with a claim against it arising upon said 'implied contract. And, as this contract was sufficient to support an action in the nature of assumpsit for money had and received against him while living, the money thus due them constituted a claim arising upon contract against his estate after his death. Allsman et. al. v. Oklahoma City, 21 Okla. 142 , 95 Pac. 468 , 16 L. R. A. (N. S.) 511, 17 Ann. Cas. 184, was such an action to recover the unearned portion of a license fee to sell intoxicating liquors which had been revoked on the erection of the state. It was urged that, as assumpsit at common law would not lie except upon a parol or simple contract, plaintiff was not entitled to recover, which we said was 'true; 'but, applying the modern rule which we declared to he that, whenever 'One had the money of another, which he in equity and good conscience, had no right to retain, the law would imply a promise to pay it over to the person rightfully entitled to it, we held that plaintiff was entitled to recover. In that ease we cited Lawson’s Ex. v. Lawson, 16 Grat. (Va.) 230, 80 Am. Dec. 702 , which was the same kind of an action; the money sought to be recovered being the property of plaintiff’s testator ' in the hands of his wife which he had left with her for safe-keeping only, a short time before his death. In a suit by his executor against her to recover it, the court, said that, if it be conceded 'that upon her refusal to deliver the money to plaintiff on demand trover might be maintained as for a tort, it by no means followed assumpsit would not lie for the reason that the party aggrieved might waive the tort and sue in assumpsit, which would lie “whenever any one has the money of another which he has no, right to retain, but which, ex aequo et bono, • he should pay over to that other,” and that “the law will imply a promise to pay the amount to the plaintiff” if necessary to support the action.
It follows that Lucy and Nellie were creditors of the Soliss estate with a claim against it, to the amount of said fund, arising upon contract which, not being presented within the time prescribed by law, was lost, oWing to the negligence of plaintiff in error and the fall of the bar of the statute, and hence he was properly surchargeable with the amount thereof.
All the Justices concur.