Birmingham age-herald., 1895-04-30

tees can only produce confusion and inac- curacy. There are certain rela- tions which are spoken ofNas trusts, and as constituting a species of constructive trusts, but which are not, in any true and complete sense, trusts, and can only be called so by way of analogy or meta phor. Since they lack the element of fraud, they do not, in any view. properly belong to the division of constructive trusts. The survivors of a partnership are called trustees for the estate of the deceased partner, with re- spect to his share of the firm property
 This expression is mostly metaphorical; there is certainly nothing in the relation resembling a constructive trust. Ex- tending the analogy still further. courts regard partnership property, after an insolvency or dissolution of the firm, and in the proceeding for winding up it's af- fairs, as trust fund for the benefit of creditors, and the capital stock land other property of private corporations, especially after their dissolution, is treated as a trust fund in favor of cred itors. These statements may be suffi- ciently accurate as strong modes of ex- pressing the doctrine that such proper ty is a fund sacredly set apart for the payment of partnership and corpora ton creditors, before 1t can be appropriated to the use of individual partners or eorporators, and that the creditors have lien upon it for their own security; but 1t Is plain that no construc- tive trust can arise in favor of the cred itors unless the partners or directors, throughe fraud or a breach of fiduciary duty, wrongfully appropriate the prop erty. and require the legal title to it in their own names, and thus place it beyond the reach of creditors through ordinary legal means" And in 9 note to the above text the learned author says: These leases are not constructive trusts, and are mentioned simply for the purposes of completeness, and to distinguish be- tween correct and mistaken conceptions" Pomeroy's Eq. Jur. sections 1O44, 1045.
 And the highest and ablest court in the land, the supreme court of the United States, has quite recently gone over this whole subject, considered exhaustively all its own decisions and dicta upon it.
 and in an able opinion by MT. Justice Brewer repudiated the idea that the prop erty of an insolvent corporation is trust fund or estate held by the corporation or its officers for creditors as cestui que trust. Judge Brewer quotes the lam guage of Judge Bradley in Graham vs. railroad company, 102 U. s. 14S, to the effect that when corporation becomes insolvent a court of equity, at the in- stance of the proper parties, twill then make it's funds trust funds, which in other circumstances, are as much the ab- solute property of the corporation as any mans property is his.' and says of that case that "all it decides is, that when court of equity does. take into it's possess sion the assets of an insoIvent corpor- ation, it will administer them on the the ory that they in equity belong to the cred itors and stockholders rather than to the corporation itself" And he proceeds further on to say: Tt is rather trust in the administration of the assests after possession by court of equity than a trust attaching to the property as such
 for the direct benefit of either creditor or stockholders" and he concludes his opin- ion upon this subject as follows: s"The same idea of equitable lien and trust ex- ists to some extent in the case of parter- ship property. Whenever a partnership