Gray v. Reamer

74 Ky. 113, 11 Bush 113, 1874 Ky. LEXIS 15

Opinions

CHIEF JUSTICE HARDIN

delivered the opinion op the court.

The essential question to be decided in this case, and the only one we regard of 'importance, is as to the correctness of the decision of the chancellor in holding the appellant equally liable with Henry W. Gray for the trust funds, which, according to the appellant’s own pleading, were solely derived from the sale to Robinson of the h'ouse.and lot on Fourth Street, in the city of Louisville.

The principle stated by the counsel for the appellant to the effect that a co-trustee acting under a power for conformity merely to enable another, who takes on himself the more responsible duties of ah active trustee, to transmit or acquire titles or make collections is not in general responsible for the estate thus coming to the hands of the acting trustee, is fully admitted, as we think it is well maintained by the arguments and citations of authorities presented by the counsel. But if the appellant does not sufficiently admit by his answer in this case that he actively co-associated with Henry W. Gray in the collection of the funds in controversy, as is contended for the appellees, we are of the opinion, from the pleadings and exhibits copied in the record, that the burden was oh the appellant of proving that although he joined in the sale to Robinson and acted as trustee in making re-investments, Henr.y W. Gray alone collected and controlled the money in controversy. This he wholly failed to do, and we are therefore constrained to sustain the conclusions of the chancellor upon the state of case presented by the record.

' Wherefore the judgment is affirmed.