Carr

For an .understanding of the. material facts and issues before us on this appeal see opinion of the lower, court reported in 99 F.Supp. 4 .

The record shows that in .April of 1942 appellant was appointed Trustee.in Bankruptcy of the Estate of Nippon Yusen Kais-ya, a bankrupt Japanese Corporation, (hereafter called NYK) which prior to World War II had been engaged in ship transportation thtoüghout the world.- In 1943, and following summary, proceedings before a’ Referee in' bankruptcy (which proceed 1 in'gs were abandoned because of doubt as to whether the ■ fund was ' subj ect to summary orders) appellant, in his capacity as Trustee in Bankruptcy, brought an action in equity in the lower court in which he prayed, inter alia, for a decree declaring that the funds in the Yoshio Muto “special account” referred to in the lower court’s 'opinion are the property of NYK, the bankrupt; directing that they be placed in possession of appellant as such Trustee for the benefit of creditors of NYK, and that all adverse claimants to this fund be declared to have no right, title or interest therein.

Upon trial of this action the lower court held that on the record before it NYK was in no…

I concur in the foregoing opinion. I think appellant cannot sustain his claim of a right arising out of a resulting trust for additional reasons. It is claimed that NYK furnished or provided the consideration out of which the bank account involved arose. It seems to me that at most NYK furnished only a part of the consideration. Assuming that it provided the $39,000 with which the Yoshio Muto account was opened and that it furnished the vessel, yet there would have been no trip and no fund were it not that the Japanese Government, as its part of the consideration, furnished its facilities and status as a sovereign power. There is no way in which what NYK furnished could be weighed or measured against what the Japanese Government furnished.

Under these. circumstances the court would be obliged to adopt the rule that where the consideration is furnished both by the alleged trustee and the claimed beneficiary in respective amounts which are uncertain and unknown even to the parties, and where the allocation of the consideration is left to mere conjecture, a resulting trust does not arise. I assume the California law controls and the rule in such cases is stated in Plass v. Plass,…

200 F.2d 251 CARR v. YOKOHAMA SPECIE BANK, LIMITED, OF SAN FRANCISCO et al. No. 13156. United States Court of Appeals Ninth Circuit. November 14, 1952. Louis J. Glicksberg, San Francisco, Cal., for appellant. S. M. Saroyan, Shirley, Saroyan, Calvert & Barbagelata, San Francisco, Cal., for appellees Yokohama Specie Bank et al. Harold I. Baynton, Asst. Atty. Gen., Chauncey F. Tramutolo, U. S. Atty., San Francisco, Cal., Valentine C. Hammack, Percy Barshay, Sp. Assts. to Atty. Gen., P. Richard Cosway and Mary Eschweiler, Attorneys, Dept. of Justice, Washington, D. C., for appellee J. Howard McGrath. Before DENMAN, Chief Judge, and BONE and POPE, Circuit Judges. BONE, Circuit Judge. 1 For an understanding of the material facts and issues before us on this appeal see opinion of the lower court reported in 99 F.Supp. 4 . 2 The record shows that in April of 1942 appellant was appointed Trustee in Bankruptcy of the Estate of Nippon Yusen Kaisya, a bankrupt Japanese Corporation, (hereafter called NYK) which prior to World War II had been engaged in ship transportation throughout the world. In 1943, and following summary proceedings before a Referee in bankruptcy (which proceedings were…