were paid in premiums on the policy, and asks that not only the amount paid, but the whole $50,000 be turned over to the bank as impressed with a trust.

Sec. 124 of Perry on Trusts, defining resulting trusts, the author says, "There is another class of trusts which result in law from the acts of parties, whether they are intended to create a trust or not, and they are aptly designated as resulting trusts."

In Sec. 125, the author says, "In this chapter resulting trusts will be examined under five heads: (1) when the purchaser of an estate pays the purchase money and takes the title in the name of a third person; (2) where a person standing in a fiduciary relation uses fiduciary funds to purchase property, and takes the title in his own

It will be remembered that the policy in question was payable to the heirs, executors, adminstrators, and assigns of Charles Bunting. By giving the $1,500 note to Fritter, who sold the same, and by paying the balance of the first premium and receiving the policy, Bunting acquired the legal title to the policy and its proceeds, and no subsequent payments of premium, maturing thereafter, by him out of the funds of C. Bunting & Co., bankers, could create a trust in favor of said bank or its receiver. The trust, if any, must arise or result from the transaction whereby the trustee acquired the legal title or right to the property in which the trust is claimed, and it must arise at the time the legal title is obtained by the trustee, and not afterward. This doctrine is sustained by the great weight of authority, and the principle applies to transactions of this character as well as to cases growing out of real estate transactions.

In Perry on Trusts, Sec. 133, it is said: "The trust must result, if at all, at the instant the deed is taken, and

the legal title vests in the grantee. No oral agreements, and no payments, before or after the title is taken, will create a resulting trust, unless the transaction is such at the moment the title passes that a trust will result from the transaction itself."

In re. Wood, 5 Fed. Rep., 443, it is said: "To raise such a trust where the purchase money is paid by one and the title taken by another, the entire purchase money must have been paid by such party; or if a part only be paid, such part must be paid for some aliquot part of the property, as a fourth, a third, or a moiety, and there must be no uncertainty as to the proportion of the property to which the trust extends. Olcott v. Bynum, 17 Wall., 44. And, again, such a trust must arise at the time of the purchase; it can not arise by after advances."

In Bosworth v. Hopkins, 85 Wis., 50, 62, it is said: "Whether any trust is to be implied in favor of the firm from the alleged secret or fraudulent use of its funds in making the purchase depends entirely upon the facts as they existed November 29, 1875, when the purchase was made, and the subsequent withdrawal of funds of the firm and use of the same in payment of part of the purchase money and interest remaining unpaid, and the payment of taxes or improvements on the land, can not be regarded as material to the rightfulness of the purchase. * * * And subsequent wrongful payments on the purchase price from the partnership funds pursuant to a land contract, and subsequent and prior to the deed, will not be ground for an implied trust, though the firm might, if necessary, have a lien against the land for sums so paid. Conner v. Lewis, 16 Me., 274; Fulton v. Jenson, 99 Cal., 587; French v. Sheplor, 83 Ind., 266; Buck v. Sweeny, 35 Me., 41; Pinnock v. Clough, 16 Vt., 500; Case v. Codding, 38 Cal., 181; Monroe, et al., v. Cummings, 95 Mo.,

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33; Bottsford v. Burr, 2 Johns. Ch., 405; Pomeroy's Eq. Jur., Sec. 1037; White v. Carpenter, 2 Paige Ch., 237; Barnard v. Jewett, 97 Mass., 87; Tilford v. Towes, 53 Ala., 120; Coles v. Allen, 64 Ala., 98; Somers v. Overhulser, 7 Pac. (Cal.), 645.

Under the facts shown the money derived from the policy is not made subject to or impressed with a trust in favor of the bank.

But it appears that the sum of $5,110, of the moneys of the bank was, after Bunting had obtained ownership and title to the insurance policy, used by him in making payments of premiums upon the policy as they matured. This sum is traced into the policy, and as we understand, Counsel for the appellant upon the argument consented that this sum, with interest, could be allowed the bank, and made a lien upon the fund.

In Sec. 842, 2 Perry on Trusts, it is said: "Where the trust fund constitutes a part only of the purchase money of an estate, the court usually gives a lien on the land only for the amount of the trust fund invested and interest; but where the entire land is the fruit of the trust fund, the cestui que trust has an election to take the land, or the trust fund and interest.'

In 1 Perry on Trusts, Sec. 128, it is said: "If, however, a trustee purchase an estate with trust funds, and adds funds of his own to the purchase money, a trust will result to the cestui que trust; and the burden will be on the trustee to show the amount of his own funds in the purchase, otherwise the cestui que trust will take the whole. If the purchase is partly with trust funds and partly not, the cestui has a lien on the whole property for the amount of the fund misapplied."

In Munro v. Collins, 95 Mo., 33, it is held that where a trustee purchases an estate partly with his own funds and

partly with the trust money, the cestui que trust, on establishing the fact, will have a lien on the whole estate for the whole amount of the trust fund thus misapplied.

See also Bosworth v. Hopkins, 85 Wis., 50; Bottsford v. Burr, 2 John. Ch., 404; Case v. Codding, 35 Cal., 191.

The respondents insist that the $50,000 derived from this insurance policy, which was payable to Bunting's heirs, representatives, and assigns, should be impressed with a trust because $5,110 of the funds of the bank were used to pay the premiums. He demands that a court of equity shall allow the bank a return of the money invested and $44,890 as a just equivalent for the use of $5,110, for the time named. If the trust created were a constructive trust, and the payments were made of trust money at the time Bunting acquired the policy, this contention would seem more in accordance with the holding of many courts. But in this case, where the fund sought to be impressed with a trust is so grossly disproportionate 'to the amount of the trust funds alleged to have been used, the application of the rule is inequitable, and courts of equity are not required to do injustice; nor should such a doctrine be invoked under a state of facts like those under consideration in this case.

The case of Holmes v. Gilman, 138 N. Y., 369, which is relied upon by the respondent, differs materially from the case at bar. In that case Gilman embezzled $200,000 from the cestui que trust, and afterward insured his life for the benefit of his wife for $50,000, from the funds so embezzled. The court declared a trust upon the fund, but, on page 385, recognized the existence of the equitable. rule here contended for without deciding the question, because it was not before the court. The court said :

"If the proceeds of these policies had been greater than

the whole amount of the indebtedness of the husband to the cestui que trust, arising out of the husband's breach of trust, we do not decide what might in equity be the different rights of the wife and the cestui que trust in the balance; or whether any different rule could be logically applied. The husband in this case converted $200,000 of what stood in the nature of a trust fund, and the plain-tiff recovers only a little over one fourth thereof in case the judgment of the referee's report be affirmed. simply decide the case before us."

We

Here the insurance was made payable to Bunting's heirs, administrators, and assigns in effect to his creditors, and $5,110 is the only sum charged in the complaint as having been in any manner misappropriated from the funds of the bank by Bunting. This is the only allegation in the complaint, or claim on that subject, while $50,000 is sought to be applied to reimburse the trust fund thus alleged to have been depleted.

In the Gilman case, at the time the policy was obtained, all of the first premium was paid out of the trust moneys. In this case the first premium was paid by the note of Bunting, for which full credit was given by the company, which vested in him the legal title to the policy at the time of its delivery, relieved from any trust obligation. In the Gilman case the policy was payable to his wife. Upon his death the policy and proceeds thereof became her separate individual property. In this case the policy was payable to Bunting's heirs, and thereby became a part of his estate, so that his creditors holding his promise to pay, and to whom he was indebted, could recover therefrom the amount due them. In the one case there was an intent shown to defraud creditors, in the other an intent and disposition is shown to pay creditors.

In the case at bar, neither the insurance policy nor the