delivered the opinion of the court:
We are satisfied that Schaffner did not agree to - put the §2700 away in a separate package, and that John M. Bayor made no request that he should do so. In our opinion the statements of the husband of appellant and of the witness Scott are unworthy of belief, and that in no event could a decree of court safely be based on them. Waiving all questions of contradictions and inconsistencies in the stories that they tell, the theory of fact upon which appellant’s contention is founded, is, when considered in the light of the surrounding circumstances, wholly improbable and unreasonable. If Bayor had been suspicious of the soundness of the bank he would have drawn out the whole of the §2900, instead of merely getting the §200 that his wife had sent him for, and taking a certificate of deposit, as always theretofore, for the residue. It is equally improbable that he made a request that the money still left in the bank should be placed in a separate package for a few days. He was wholly ignorant and uninformed in regard to banking business, had never done any business with a bank other than that connected with the transactions in question, and manifestly did not know the difference between a special deposit and a general deposit in a bank, or that the relation between the bank and the depositor would be different in the one case from what it would be in the other; and occupying this standpoint, and Schaffner being almost or quite a stranger to him, it is incredible that he was suspicious of the soundness of the bank, and yet satisfied when he received a certificate exactly like those given on all prior occasions, and a vague and indefinite assent from Schaffner to his request to put the money in a package by itself.
To our minds it is suggestive that the original petition filed by appellant on June 10,1893, proceeded upon the theory that the bank was insolvent on June 1,1893, — the „ date of the last certificate of deposit; that Schaffner & Co. knew at that time that they were insolvent, and misrepresented to appellant that the money would be safe in their hands, and that therefore the title to the money did not pass to the bank, but remained in the petitioner; and that on the 25th of June the petition was so amended as to charge that the fund “was, by the terms and conditions of said deposit, to be kept in a separate and distinct package, and was not to be mingled with the general funds of the bank.” And it is also significant that prior to the amendment the husband of appellant had read in a newspaper an interview with one of the attorneys for the assignee of the bank, in which such attorney had said that if appellant was a depositor, and the $2700 had been mingled with the general funds of the bank, then she had lost it.
But even if we should assume that the husband of appellant requested Schaffner to put the $2700 away in a separate package, and that the latter promised so to do, yet the evidence shows that such promise never was complied with, and that said money never was separated from the general funds of the bank, and that no steps whatever were ever taken to effect such separation, by either placing the money in a distinct parcel, or by making any entry upon the books of the bank indicating a withdrawal from the general funds of the firm, or by giving a receipt containing even an intimation of a special deposit. On the contrary, an ordinary certificate of deposit was given for the money not drawn from the bank —just as had been done on all former occasions.
It has frequently been announced as the law of this State, that even in a case where a definite and actual trust fund, which possesses all the attributes of a separate and distinct identity, has been so mixed and mingled with other funds as to render identification impossible, the cestui que trust, in the event of the insolvency of the trustee, is remitted to the position and the rights of a general creditor; and where the relation between the parties is primarily that of debtor and creditor, and there is a mere unperformed agreement on the part of the debtor to create a specific fun,d which shall possess a separate identity, and to hold the same in trust, it would be illogical and inconsistent with these adjudications to hold that such creditor occupies a stronger position than one who is primarily the beneficiary of a distinct and identified trust fund. We regard the cases of Trustees of Schools v. Kirwin, 25 Ill. 73, Otis v. Gross, 96 id. 612, Union Nat. Bank of Chicago v. Goetz, 138 id. 127, Wetherell v. O'Brien, 140 id. 146, and Mutual Accident Ass. v. Jacobs, 141 id. 261, as conclusive against the contentions urged herein by appellant.
We think that no different rule than that to be formulated from the cases above mentioned is held in Kirby v. Wilson, 98 Ill. 240, which is cited by appellant and largely relied on. • That case was first before the court in Wilson v. Kirby, 88 Ill. 566. A portion of the proceeds of the sale of certain cattle was in the hands of Alexander, the deceased, at the time of his death, and was paid over to Kirby, his executor. It was there said: “These proceeds stood in the place of the cattle sold, as their substitute or representative, and were the property of the Wilsons, as the cattle were, under the contract, and can be traced and identified as their particular property, and may be followed into the hands of the executor, and they have a preferable claim thereto over general creditors.” And it was upon the theory that there had been a sufficient identification of $12,143.88 of the $20,500 found upon the person of Alexander at his death as a part of the proceeds of the Wilson cattle disposed of by Alexander, that the judgment was affirmed in Kirby v. Wilson.
We find no substantial error in the record. The judgment of the Appellate Court is affirmed.
Judgment affirmed.