Evening times-Republican. [volume] (Marshalltown, Iowa) 1890-1923, 1902-04-03

| questions presented mere as w eiiS
statute of limitations. There Is well
known rule that where there is a trus-
tee holding trust fund the stat
ute of limitations does not run against
the fund in his hands and againet the
| benefciaries until demand is made ana
refused or until the trustee does some
act which indicates purpose to re-
| pudiate or deny the trust relation. !
cannot find in the evidence here any
act which indicates that either OF these
| things was done to set the statute OF
| Limitations in motion, and do not be-
| lieve that this plaintiff and others who
are entitled to part of this fund as
benefciaries, that the statue of limlta-
lions runs against them.
| another important question arises
as to interest. Now l think there is a
rule that must apply here and that is
that interest does not rum or rather
interest cannot be collected. upon a
| fund in the hands of a trustee until de-
mand is made to pay that fund. The
fact is this fund laid there in the
hands of the county treasurer for some
time and then it was transferred to the
county fund and it has been used,
think, wrongfuly, not warranted IN
law. l might say: but there is no con-
cealment about it; there is no fraud
practiced upon any one at all, because
there was no one claiming it. / do not
suppose it was known by the board OF
supervisors at that time whether or not
there were any beneticiaries entitled TO
this fund any more than the benei1-
Charles themselves knew of the fund.
They were both in ignorance of the
rights of each otehr. That is, the coun-
ty treasury that held the money, did not
know of any benefciaries entitled to
the fund, and the benefciaries did not
know that this fund was lying there
until about the time this suit was COM
menced. Now / do not think the coun-
ty should be charged with interest on
this fund in view of the record made
here, as shown by the evidence l have
no doubt if these beneficiaries had
made demand about the time that this
fund was transferred to the county
fund every dollar of 1t would have been
paid il it could have been determined to
whom it was to go. The county did not
know what ought to be done with the
fund and there was no body demanding
it. So / cannot see that any interest
should be charged to the county up to
the time this suit was commenced at
least. Now. the next question, is what
shall be done with this fund. AS before
said. the only theory upon which the
PLAINTIFF and others who are benefi-
Charles could recover at all. is on the
theory that it is a trust fund. Now II
~ hnt of o.
gests that there are beneficiaries. The
question is, who aN the beneficiaries?
That the court must find out before
this fund can be distributed. The court,
or some one commissioned for that
purpose, must ascertain where 1T is to
60 1t is not like case of a debtor in
failing circumstances, the one who
comes first is first served. 1t is not a
case Of that kind. The court must be
just as careful that the proper parties
get this fund as that the fund is used
for the proper distribution. So have
reached this conclusion:i In view of the
record made and the authorities that l
think should apply here, that this
sum of sS.529 and some cents that was
transferred should be paid over by the
county treasurer to the clerk of this
court and then it should be ascertained
who are the benef1ciaries. l do not
think they can recover interest any
more than the county can be held to
account for interest
"The fact is that this fund really
belongs to the men who enlisted and
have not been paid, and the only con-
clusion I can now reach is that this
II -
is no haste about that If the county
has not the fund all on hand or would
have to make an additional levy in
some way, time must be given them.
but my conclusion is that this fund is
in the hands of the treasurer as trus-
tee, and then when this fund is avail
able by being paid over to the clerk, or
whomsoever the court may designate,
then it must be ascertained who arc
the benefiiciaries. That brings in the
claim of this plaintiff with the rest.
do not think that question should he
litigated alone by him. These bene-
ficiaries coming here may have some
thing tohsay as to how much. whether
under both enlistments, this plaintiff
is entitled to the bounty or only one.
For instance, that question has not
been really litigated, except from the
plaintiffs point of view. When all the
beneficiaries come in, they may have
something to say to the court as to
who is entitled tofit. In other words,
they each can present their claim. #
they had been named, then I might
make an order as has been suggested,
whether or not this plaintiff is entitled
IN oil ta claims for both an1iStn1anfS
but until they are all in here, do
not want to pass upon this"