
    No. 95
    ORMSBY v. FINNEY, et al
    U. S. Circuit Court of Appeals, Sixth Circuit,
    No. 3737,
    Decided June 6, 1922
    Attorneys — G. F. Ormsby, in pro per,, for Ormsby; W. L. Miller, Xenia, and Robert L. Black, Cincinnati, for Finney.
   PER CURIAM:

Epitomized Opinion

Ormsby’s father was trustee of a trust estate, created by his mother, consising of money, for the benefit of Ormsby. The father carried out the provision honestly, but mingled the money with his own. Prior to his death he made a will, giving to each of the beneficiaries his share of the trust fund, and dividing equally his own property, which was considerable in amount. Ormsby brought suit, contending that his father, as trustee, could not dispose of the trust fund, and that because the trustee had mingled the trust money with his own, the entire estate of the trustee became trust property and belonged to the cestui que trusts. The latter was the real obejcts of the suit. The court held:

(1) That a trustee cannot dispose of trust property by will, even though it make the same distribution as under the trust.

(2) Where a trustee mingles trust money with his own in an indistinguishable mass, equity will follow the money by taking out the same quantity; and it is only when it is absolutely necessary to protect the cestui que trust that all the property will be regarded and taken as trust funds.  