It is urged, in connection with other grounds, for the reversal of the decree of the court below, that the court had no jurisdiction of the subject matter. While by the defendants in error, it is insisted that Maurice Doyle was a trustee, and being such, a court of equity has undoubted jurisdiction over the trust fund. That the court has such a jurisdiction in cases of strict trust, there is no doubt. But it does not therefore follow, that the court will assume jurisdiction in every case where a mere confidence has been reposed, or a credit given. The various affairs of life in almost every act between individuals in trade and commerce, involve the reposing of confidence or trust in each other, and yet it never has been supposed that because such a confidence or trust in the integrity of another has been extended and abused, that therefore, a court of equity would in all such cases assume jurisdiction. When one person sells property on credit, or loans money to another, confidence is reposed and a trust is entertained that the money will be paid by the debtor, and yet no case has gone so far as to hold, that it was such a trust, as gave to a court of equity jurisdiction under the head of trusts. If this were so, there would be no case where property or money was obtained on a credit, in which the court would not have jurisdiction. But on the other hand, when property is conveyed or given by one person to another, to hold for the use of a third person, such a trust is thereby created, as authorizes the court of equity to entertain jurisdiction, to compel its application to the purposes of the trust. And the property may be pursued into the hands of all persons who have obtained it with notice of the trust, or where it has been converted into money, the money may be recovered, or where the money arising from the sale of trust property or funds, has been invested in other property, a court of equity will compel the trustee to account for the property thus acquired, and treat it in every respect as if it were the original trust property. In this case the bill alleges and one of the complainants swears, that money was delivered to Maurice Doyle to pay certain debts of Catherine Byrne, which he failed to so apply. If he failed to pay this money, there was such a breach of contract, as would have authorized Catherine Byrne to maintain an action for money had and received, and probably the creditors to whom the money should have been paid might have maintained the action. But according to no rule or adjudged case that we are aware of, was it a trust fund, authorizing Mrs. Byrne or her representatives to recover as a trust fund. If it was a trust fund, it was such for the benefit of her creditors, and they would alone have had the right to pursue it in equity, and her representatives have no better or greater right than she held.
Again it was insisted that when the debentures were left in the safe which was left with Maurice Doyle, that he thereby became a trustee, and that they became a trust fund. This complainant swears that the debentures were placed by Mrs. Byrne in an iron safe, locked by her, and the keys kept in her possession, and the safe thus locked was left with him, and that he by false keys opened the safe, and abstracted the debentures, and placed in their stead false and forged debentures, for a similar amount. This evidence, if it is to be credited, shows the want of all confidence and trust in Maurice Doyle, as the safe containing these choses in action, was locked against him, and the keys retained from him. The debentures were not placed in his possession as such, but they were locked against him. She gave him no power over them, but manifestly intended that he should have none. And if he ever acquired the possession of them, it was by larceny, or at the least by a trespass, when he committed a forgery. And the acquisition of property by either larceny or trespass, it is believed, has never been held to create the relation of trustee, and cestui que trust. And this is what the charge in the bill, and the evidence in its support, if it were believed, amounts to, and nothing more. If such facts were held to create a trust, the court would have jurisdiction in every case of larceny, and trespass de bonis asportatis. We think if the evidence might be regarded as true, this was not a trust fund, nor was the money placed in his hands for the creditors, such a fund.
It was likewise insisted, that the court had jurisdiction be-cause this money was bequeathed by Catherine Byrne, to Honora Teresa Murphy. It is undoubtedly true, that in cases of a bequest by a testator to a legatee, until the executor assents to the bequest, the only means of recovering it by the legatee, is by a resort to equity. In such a case, the legal title vests in the executor, for the purpose of first discharging the debts, and if not required for that purpose, then for the legatee, and the legatee by the will takes the equitable title to the bequest, subject to the debts against the estate. It is only in cases where the executor and legatee take under the same will, that the court has jurisdiction to decree the delivery or payment of the bequest. We have not been referred to any case, nor is it believed that any such exists, where it has been held, that where a testator bequeaths a debt due him to a legatee, that he may resort to a court of equity for its recovery. If Maurice Doyle had by his will bequeathed this money to this complainant, then she might have resorted to her bill against these defendants. By virtue of this bequest from her mother, she did not acquire the relation, to the administrator of Maurice Doyle, of a cestui que trust. She by that will became the executor if she obtained letters testamentary, and thereby became a creditor of Maurice Doyle’s estate.
It was moreover urged, that this bill might be treated as a proceeding for the marshaling of the assets of Doyle’s estate. Such bills are only entertained in cases where various creditors claim equitable liens, some in priority of others. Where some of the creditors have liens on the common fund and upon another fund, upon which the others have no lien; as where there exists two or more funds, and there are several claimants against them, and at law one of the parties may resort to either fund for satisfaction, but the others can only look to one of them; courts of equity exercise the authority to marshal the funds, and by this means enable the parties, whose remedy at law is confined to one fund only, to receive due satisfaction, on the principle of the maxim, “ sic utere tuo ut alienum non Icedas,”— use your own in such manner as not to injure another. In this case there are no facts or circumstances which can give the court any jurisdiction to marshal assets. There are not creditors or others having liens on different funds, requiring the interposition of the court. The facts only show the complainants to be creditors of this estate, and entitled to file and prove up their account, in the same manner as any other creditor. The remedy at law became adequate and complete, if Doyle ever appropriated the money and debentures to his use, and they must be left to seek their remedy in that form.
If a court of equity was to entertain jurisdiction in this case, upon either of the grounds upon which it is urged, it is believed that few if any cases could occur, where an estate was indebted, that it might not do so with equal propriety to enforce payment of such debts. And it would tend to destroy the effect of the 115th section of the statute of Wills, which has divided debts owing by estates of deceased persons, into classes. To treat such creditors as cestuis que trust, and a sufficient amount of the estate to discharge their claims, as trust funds for their discharge, would place all debts in the same class. Such we have no hesitation in saying is not the law.
The decree of the Circuit Court must be reversed, and the bill dismissed.
Decree reversed.