Orphan Asylum Society v. McCartee

1 Hopk. Ch. 429

Opinion

The Court

said that it was not necessary to consider the main question of right, which for the present, must be treated, as resting in equilibrio. The real intention of the testator is not doubtful; but this devise, like all others, must be subject to the rules of law.

The only important ground of this motion, is, that the trustee mixes the trust funds with his own ; and I think that fact not sufficient for the appointment of a receiver. It is not alleged that the fund is in danger, nor denied that the trustee keeps accounts.

Many trustees and many public agents keep their moneys in no other manner ; they mix the trust funds with their own funds in bank or in coffers ; and it is not deemed a breach of duty.

It is said that the appointing of a receiver rests in discretion. This proposition does not teach much. A receiver is proper, if the fund is in danger; and this principle reconciles the cases found in the books. There is no case, in which the court appoints a receiver, merely because the measure can do no harm ; and still less, when the trustee is such under' the appointment of a testator. If such reasons could operate, a receiver might be appointed for every trust. As this case now stands before the court, the fund appears to be entirely safe in the hands of the trustee.

The motion is therefore denied.