Re Oatway

Where a trustee withdraws money from a mixed account to buy an investment and then dissipates the rest, the beneficiaries can claim the investment.

Citation
[1903] 2 Ch 356
Court
Chancery Division
Year
1903
Subject
Equity and Trusts
Topic
Tracing and third party liability

Facts

Mr Oatway, a trustee, paid trust money into his own bank account, which contained his own money. He then withdrew money from the account to buy shares, at a time when there was enough left in the account to cover the trust money. He later withdrew and spent all the remaining money in the account. When he died insolvent, the beneficiaries claimed the shares, which had been sold for a profit.

Legal principle

Joyce J held that the beneficiaries were entitled to the shares, or their proceeds. He said that the trustee cannot rely on the rule in Re Hallett to say that the shares were bought with his own money, when the rest of the money in the account was later dissipated. The beneficiaries are entitled to a charge on the whole of the mixed fund and anything bought with it, and the trustee cannot maintain that the investment that remains represents his own money until the trust money has been restored.

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