dissenting:
I respectfully dissent. I am convinced that the disposition of this case» by the bankruptcy and district courts was correct.
The majority overlooks the fact that after Research-Planning’s funds were deposited by First Capital into its general account with the Bank of Utah, all of the commingled funds in the account were depleted through a series of transactions. See Research-Planning, Inc. v. Bank of Utah, 690 P.2d 1130, 1131 (Utah 1984). Under long-standing rules, when commingled trust funds are wrongfully transferred by the trustee to a bona fide purchaser, the beneficiary of the trust cannot trace its trust funds into the hands of the bona fide purchaser. Turley v. Mahan & Rowsey, Inc. (In re Mahan & Rowsey, Inc.), 817 F.2d 682, 684 (10th Cir.1987). The beneficiary may only proceed against the trustee.
As in this case, where the trustee’s transfer to a bona fide purchaser has depleted all of the funds in the commingled account, the beneficiary’s only recourse against the trustee (First Capital) is a general claim for damages arising out of the trustee’s misfeasance. See 4 Collier on Bankruptcy 11541.13 at 541-76 to -77 (L. King 15th ed. 1988); G. Bogert & G. Bo-gert, The Law of Trusts and Trustees, 921 at 368-69 (2d ed. 1982). Consequently, from the time the funds in First Capital’s general account were depleted, Research-Planning had only a general, unsecured claim against First Capital for the amount of the funds it had deposited into escrow with First Capital. With the advent of First Capital’s bankruptcy, Research-Planning’s position did not change. It remained a general, unsecured creditor of First Capital. In re Mahan & Rowsey, Inc., 817 F.2d at 684; see also G. Bogert & G. Bogert, § 862 at 34.
The majority suggests that the trustee’s subsequent recovery of certain funds from the Bank of Utah in settlement of a preference action was a recovery of Research-Planning’s original escrowed funds which had never become a part of the bankruptcy estate. While it is true that funds held in trust by the debtor are not included in the bankruptcy estate, 11 U.S.C. § 541 (1982 & Supp. IV 1986), the beneficiary of the trust must be able to trace its funds into some assets held by the debtor at the time of bankruptcy. See 4 Collier on Bankruptcy II 541.13 at 541-74 to -76. Research-Plan*338ning could not do this since its funds were transferred to a bona fide purchaser and no funds remained in the commingled account. That the bankruptcy trustee succeeded in obtaining some of these funds back from the Bank of Utah, for whatever reason, should not change Research-Planning’s position as a general, unsecured creditor of First Capital. The bankruptcy trustee’s powers are exercised for the benefit of the estate as a whole, not individual creditors. Consequently, it is not inequitable that Research-Planning should now be treated as a general creditor of the estate in bankruptcy.
For the reasons stated so aptly by the district court, I would affirm its order denying recovery of the funds to Research-Planning.