(dissenting). I regret that I am unable to concur with my Brethren in this case. I have no quarrel with the fundamental legal principles discussed in the majority opinion, but I believe the fact basis essential for the application of those principles to the instant case is entirely lacking. The burden of proof in this case was upon the respondent and it seems plain and the majority opinion apparently concedes that before respondent could recover he must prove by a fair preponderance of the evidence that the trust res or its proceeds came to the hands of the appellant Krovig. I do not think there is any sufficient proof of that fact in this record either by direct testimony, circumstances or justifiable' presumptions.
The trust res was received by Robert S. Cooley and there the actual proof ceases. There is no proof whatever as to what he did *139with it as a matter of actual or independent fact. There is no showing that he mingled that money with his own funds. It was his duty to invest the trust res in his name as trustee (not in his own name) and to keep it safely in that form. There is no direct ■evidence that he did or did not so do. If he had so done the res in the form of a proper investment in his name as trustee should have been found among his effects at the time of his death. It was not so found. Thereupon two possibilities arise. Perhaps the trust res exists in proper form and simply has not been discovered since his death. That certainly is a possibility which is not, and could not be, precluded by any testimony in this case.
Waiving that possibility, however, we may assume that no such trust res in proper form existed at the time of his death. Accepting that assumption, it is clear that somewhere, some time, and in some manner, Cooley breached his trust, but I see nothing in the evidence in this case to justify us in presuming as a matter of law ■or as a matter of fact that he breached his trust in one way or at one particular time or in one particular manner, rather than another. From the facts that he received the trust res, and that it is not discovered in any identifiable form at the time of his death, we may presume some breach of trust, but I do not see how we can arbitrarily or presumptively select among an infinite number of possible breaches and say “He breached his trust by investing the trust fund in his own name in some of these particular assets that came to the hands of the defendant at his death. Therefore, she received the trust res or its proceeds and' must repay.”
Cooley received the trust fund on June 13, 1917, and the record is utterly silent as to what he did with it. Seven years later Cooley died, leaving notes and mortgages in his' own name of a face value of much more than the trust fund. When and how he breached his trust and disposed of this res during this period of seven years is not apparent, except that we do know that he failed to pay over the income annually, and to that extent breached his trust at the end ■of the first year or back in 1918. I see no conceivable ground for indulging the presumption that the particular breach he committed was to invest the trust fund in his own name in some of the particular notes and mortgages of unknown date and origin that came to his widow at his death.
I think, therefore, that there has been an utter failure of proof, and that the judgment and order appealed from should be reversed.