It seems anomalous to me that A can steal from B in order to pay a debt to C, and that where there are no substantial intervening equities that B cannot recover the proceeds from C. Of course, if the loot is in actual cash and cannot be identified, or there are intervening equities, there is reason for the rule. It seems ultratechnical, however, to say here that the loot became cash when it was deposited in savings banks. It is clearly identifiable by the pass books, and there are not intervening equities that I can see except possibly as to the sum withdrawn by the appellant and placed in another savings bank. If the appellant had drawn out the rest of the money and disbursed it, or even hidden it under the bed, the case would be different, and it might well be said that public security, public interest, etc., required the application of the rule invoked. But here all we have involved is which of *231two innocent people must suffer. It seems to me that the appellant should take the loss for after all the deposits do not represent the money that was embezzled from her. She had already been bilked by the time the thief dipped his hands into another estate. True, she didn’t know it but I fail to see how that should inure to her advantage. There is no choice that I can see in the trust reposed in the recreant attorney by both estates. The simple test should be: who owns the money?
Bergan, Coon and Zeller, JJ., concur with Gibson, J.; Foster, P. J., dissents and votes for affirmance, in a memorandum.
Decree reversed on the law and facts and petition dismissed, with costs to appellants.