
    Gallinger v. Pomeroy, Adm'r.
    
    An agreement to pay a certain of a victim of a promissory note when collected, amounts to an equitable transfer of that portion of tbe note, and snob portion cannot be claimed as part of tbe assets of tbe insolvent payer.
    In Equity. Appeal from Wapello District Court.
    
   Opinion by

Greene, J.

Bill filed by Abram B. Gallinger against John Pomeroy, adm’r of tlie estate of David M. O. Lane. The facts stated in the bill show that Lane, on the 24th of February, 1849, executed a written instrument in these words : “ On or before the first day of April next, I promise to pay Elam Push fifty-five dollars for value received, to be paid out of a note I hold on YY. II. Barnes when colleckd, sooner or later, using due diligence.” On 27th of Juno following, Hush assigned this instrument to complainant. Before the Barnes note was collected Lane died insolvent; Pomeroy was thereupon appointed administrator of the estate, and soon after collected the note against Barnes,' and refused to pay the fifty-five dollars to complainant, from the funds collected, but claimed the same as assets for the estate. Complainant thereupon filed his bill to enforce payment, agreeable to the tenor of said instrument, out of the funds realized from the Barnes note. A decree was rendered in favor of complainant for the amount of the instrument, but ordered payment from the assets of estate, thus placing it in the situation of other demands against the estate, to draw pro rato from the assets. To that portion of the decree complainant objects, and now- seeks to reverse in this court.

We think the instrument executed by Lane clearly expresses the intentions of the parties, and that it wa§ designed as an equitable transfer of fifty-five dollars of tbe funds which might be realized from tbe Barnes note. Inequity Lane assigned his interest to that portion of the note, and held the same in trust for Bush or his assignee ; complainant, as assignee of Rush, acquired an equitable lien upon fifty-five dollars of the note and of the funds when collected. The funds paid on the note came into the hands of the administrator of Lane, clothed with the trust and subject to the equitable lien which had been created by the' parties to the instrument in question. The administrate then had no right to consider the fifty-five dollars as gem eral assets of the estate.

W. H. Brumfield and W. A. Thompson, for appellant.

Geo. G. Wright, for appellee.

The authorities upon this point we regard as conclusive. 'Story, Ex. Jr., §§ 1043-44-45. In estate of Fenn, 1 Ash-meed, 3IS), it was held that when an intestate had given his-Creditor an order on his debtor, which was accepted, payable out of funds when they should come to hand, that it gave the creditor a specified lien on the fund out of which It was to be paid, and that it could not be considered a& -assets in the hands of administrator, on the death of the intestate. The same principle obtained in Minick’s estate, •§ Wotts. and Lory, 402. Iii deciding the case at bar, the court below must have considered the instrument as posáessing nothing more than the properties of a promissory note, with the usual liability against the maker. But we--regard it as an assignment of fifty-five dollars of the Barnes Uote, and an undertaking to use duo diligence in collecting and paying the same to Rush, and it clearly indicates that 4he credit was given upon the faith of that particular fund, father than upon the individual responsibility of Lane.

The decree of the court below is therefore reversed, and g decree will be rendered in this court agreeable to the -prayer of complainant’s bill.

Decree reversed.  