I cannot concur in the conclusion reached in the majority opinion. I find no fault with the rules of law set forth in the syllabus, but in my opinion paragraphs 5, 6, and 7 thereof do not apply to this cause, unless it can correctly be determined that the specific finding of the trial court (quoted verbatim in the majority opinion) which is in effect a finding that the evidence is insufficient to show that "the property, money, and funds" in the hands of the defendant as executrix of the estate of William E. Snow, alias Roy Fay, deceased, is any part of the property or funds of the Stanley estate, which said deceased admittedly converted into cash and negotiable securities while he was administrator of said estate, is clearly against the weight of the evidence. The rules of law set forth are by their own terms dependent for their applicability upon proof that the trust money (in this case the funds derived from the Stanley estate) was transmitted to the fund or mass or bank account from which their recovery is sought.
Granting that the evidence is sufficient in the present case to trace the Stanley estate's missing property, or the proceeds from the sale thereof, into the hands of William E. Snow (who as administrator of said estate was trustee thereof) before he came to Oklahoma, yet there is no positive proof in the record before us that he brought any of said funds to this state, that they had been commingled with his personal funds, or that the money comprising the deposits he made in the banks of Chelsea, Okla., had any relation to or connection whatsoever with the missing funds. All of the evidence by which it was sought to trace the missing funds of the estate from Snow's possession in Vermont to his bank accounts in Chelsea, Okla., is purely circumstantial. In order to concur in the conclusion of the majority, it must be inferred from the fact that Snow arrived in Chelsea with a large sum of currency on his person, that this sum was a portion of a larger sum of the estate's funds that he had received while administrator of said estate, before he came to reside at Chelsea, in spite of other evidence which indicates that said currency may have been derived from other sources. For all that the proof affirmatively established, all of the money which Snow deposited in the banks at Chelsea may have been his own earnings derived singly or collectively from several different sources that are mentioned in the evidence. Among these (besides the approximate sum of $2,000 he had received from the Stanley estate apparently as legitimate administrator's fees and expenses) are inheritances which he told his wife (defendant) he had received from a father and grandfather in Boston, Mass., his writing for magazines, and a position which after one of his absences from Washington, Vt., he told the witness Walter W. Bewsee he had secured with a steel company in Boston.
Unquestionably, the evidence as a whole is insufficient to prove beyond a doubt from what particular source came the money which Snow had on his person when he arrived in Chelsea, Okla. In cases where the evidence is of this character and there is ground for a difference of opinion as to its persuasiveness, weight, or probative value and the inferences to be drawn therefrom, I believe the doubt should be resolved in favor of the judgment of the trial court, who may see and know many things concerning the evidence which do not appear on the face of the record thereof. This court is firmly committed to the rule that the judgment of the trial court will not be reversed on appeal merely because it is possible, from an examination of the evidence, to reach a conclusion that is contrary to the trial court's findings upon questions of fact. See Johnson v. Rowe, 185 Okla. 60, 89 P.2d 955.
While I recognize and agree with the modern trend which relieves the cestui que trust from identifying the exact coins and bills in tracing the trust money into a particular fund in the trustee's possession, yet unquestionably the rule has always been, and still is, that the money must be traced by clear and convincing *Page 237 evidence (Winter v. Klein, 186 Okla. 74, 96 P.2d 83) into the fund in some form or other. Granting or conceding as has already been done that under the record before us the missing funds of the Stanley estate were traced into the hands of the trustee, Snow, while he was administrator of said estate, such proof is not alone sufficient to impress a trust upon the assets of such trustee found in the hands of the administrator or executor of his estate. See Apple et al., Adm'rs, v. Hert,122 Okla. 153, 252 P. 823, 55 A. L. R. 1271. Since the evidence is so far from conclusive that the money with which Snow arrived in Chelsea was a portion of the funds of the Stanley estate which he received while he was administering said estate in Vermont, and there is evidence from which it might be inferred that said money was derived from sources other than that, I am not convinced that the specific finding of the trial court is against the weight of the evidence, and that its judgment in accordance therewith is erroneous under the rule set forth in the syllabus of the opinion in the Apple Case, which reads as follows:
"Tracing the trust funds into the hands of the trustee is notalone sufficient to impress a trust upon the assets of such trustee found in the hands of the administrator of his estate or in the possession of a receiver appointed by the court. Suchdiverted funds must be traced in some form into the hands ofthe administrator or receiver." (Emphasis ours.)
Here, as in the Apple Case, there is no question but that the funds were traced into the hands of the trustee — no question but that before Snow came to Oklahoma and opened bank accounts at Chelsea he diverted funds of the Stanley estate into his own possession. That much, the defendant concedes, but no more. This brings us to that portion of the majority opinion where, in attempting to distinguish between the case at bar and the Apple Case, the following statement is made:
"Here the funds were not only traced into the hands of the trustee, but it is admitted they were in the accounts whentaken over by the administrator. * * *" (Emphasis ours.)
This statement is misleading to say the least. It conveys the impression that in this case it is admitted that trust funds from the Stanley estate were in the bank accounts of William Snow at Chelsea, Okla. I find no basis in the record for such an assertion. Although, as I have pointed out, it was admitted that at one time Snow received funds from the Stanley estate, it was never admitted that these funds found their way into his bank accounts at Chelsea, Okla. The funds in these accounts are analogous to those comprising the deposits in the reopened or formerly exhausted account of Jake L. Hamon in the Apple Case, supra. In both cases the moneys in the accounts were assets of the depositor found in the hands of his personal representative after his death. In neither case does the record contain anything to place beyond the realm of mere speculation, conjecture, or inference the question of from what source came the money comprising said deposits.
For the foregoing reasons, this court is not justified, upon legal principles, in reversing the judgment of the trial court and holding, upon the basis of the circumstances described in the majority opinion, that said court's finding upon the pivotal question of fact in the controversy is clearly against the weight of the evidence, even though it be granted that said circumstances, aided by inference, are perhaps sufficient to cast grave doubt upon the correctness of said finding or even to support a conclusion contrary to that reached by the trial court.
Furthermore, I cannot perceive how any sound distinction can be drawn between the weight of the evidence upon the question of whether the bank deposits were derived from funds of the Stanley estate and the weight of the evidence upon the question of whether the sum of $329 which Snow paid upon the purchase of the Packard automobile was also derived from said estate's funds. If it be assumed that the majority opinion is correct in regarding the evidence as sufficient to establish that Snow was still in *Page 238 possession of trust funds at the time he purchased the Packard as well as at the time he made the deposits, why should it be inferred from this fact that a portion of the trust funds went into the deposits and yet not also be inferred that a portion thereof was used in the purchase of the auto. In my opinion, the inconsistency in the diverse conclusions reached upon these two items in the majority opinion is patent. In what respect is the evidence any more adequate to afford a tracing of a portion of the trust funds into the bank accounts than it is to enable a tracing of a portion of the same funds into the consideration paid for the automobile? In my opinion, an examination of the evidence reveals no legally sufficient answer to this question.
On the basis of the foregoing considerations, I submit that the majority opinion reveals no legally sufficient reason for reversing the judgment of the trial court in any particular, and in my opinion, said judgment should have been affirmed.
WELCH, V. C. J., and DANNER, J., concur.