$380, which was subtracted from the cashier of the bank, and delivered it to amount of the check, which left $1,211.55. Blandford, who, upon the same day, sent When Blandford observed that the deposit it in a letter to Leachman, and also a slip showed the deposit to be made in the statement of his own, showing the amount name of Lizzie Leachman, he made objec- of money he had received for the land, and tion to having the deposit made in that the items of taxes paid out of it, and the way, and said that he wanted it deposited amount of the note which the bank held to the credit of S. and Lizzie Leachman, against Leachman, and the amount deas he wanted that day to send to Leachman posited. It seems that this was all the a statement of the transaction, and to information received by the Leachmans send a deposit ticket, showing what had covering the transaction. Thereafter a been done with the money. Thereupon Lam check for the sum of $70, and dated June made out a deposit slip, showing that the 21st, and payable to Fred Woodfull, was $1,211.55 was deposited to the credit of deposited in the Southern National Bank, S. and Lizzie Leachman, and signed it as in Louisville, Kentucky, by Woodfull, and swer applications for a power of attorney in | trustee for their creditors, it being thereby favor of his coassignees, the court, against agreed that the bankers should be released, the objection of the bank, granted an order it was held that one of the executors could that the bank be directed to pay the money not thus release the bankers. The supreme to the remaining three assignees. Lough-court affirmed the judgment for the reasons borough, Ld. Ch., observed that he never would permit another shilling of a bankrupt's property to be paid into the bank if it were not to be subject to his control afterwards.

Similarly, where three assignees opened an account in a bank, and one of them absconded, and the bank declined to pay on checks signed by the other two, the court, on authority of Ex parte Collins, supra, made the order directing the bank to pay checks so signed. Ex parte Hunter, 1 Meriv. 408, 2 Rose, 363.

In this connection it may be noted that where dividends of a trust fund standing in the name of the accountant general were payable to five trustees residing in various localities, the fund being a small balance, it was ordered that it might be paid to the trustees or to one of them. Shortbridge's Case, 12 Ves. Jr. 28. And that in Atty. Gen. v. Brickdale, 8 Beav. 223, the trustees of a charity being very numerous, it was ordered that dividends from a fund in court might be paid to the trustees or to any two of them.

Executors.

While there is no doubt that a bank may lawfully pay to one of several executors its debt to the decedent, the authorities are not entirely agreed as to whether a bank may pay out on the order of one executor money of the estate deposited by more than one executor. That all the executors should join in the order is held in De Haven v. Williams, 80 Pa. 480, 21 Am. Rep. 107, and in Allen v. Louisiana Nat. Bank, 50 La. Ann. 366, 23 So. 360. The contrary view is taken in Stone v. Union Sav. Bank, 13 R. I. 25, where, however, it is not clear from the report whether the deposit may not have been originally made by the decedent.

In De Haven v. Williams, supra, where two executors deposited money with bankers, and later one of the executors joined in a composition of the bankers with their creditors, by the terms of which agreement all the property of the bankers passed to a

given by the court below, which said: "It were futile to open a joint account, if one of the depositors could withdraw the money. All must, therefore, unite in the receipt or check, in order to discharge the banker; and it follows that he cannot rely on a compromise or release by one as a defense.

It results from what has been said that the right of executors to sever in the execution of the trust is a concession to expediency, which should not be made when the case is one for care and judgment, and it is possible for all to unite without inconvenience. It does not, therefore, exist, where a fund arising from the collection or sale of the assets comes to the hands of two or more executors or administrators, or has been deposited to their account."

(See also an observation of Ashman, J., in Power's Estate, 15 Phila. 539, suggesting that one executor is chargeable with the amount of a deposit of moneys of the estate in the joint names of himself and the other executor.)

In Allen v. Louisiana Nat. Bank, supra, where three executors opened an account with a bank, and two of them gave the third a power of attorney to draw, and later, one of those giving the power notified the bank not to honor any checks which were not signed by him, and also that he had canceled and withdrawn the power, it was held on a mandamus, that the bank would not be forced to pay a check signed by only two of the executors, but the court ordered that the cause should be remanded in order that the executor who had refused his permission, might be joined. (It may be noted that it seems that in Louisiana an action may be sustained by one of several joint obligees. See Hincks v. Converse, 38 La. Ann. 871.)

In Stone v. Union Sav. Bank, supra, it was held that a bank was not liable for pay-. ing money on a check to which one of the two executors' names had been forged, although it had been notified by such executor not to honor checks without his signature,

in the bank, to the credit of that fund, $141.55. It should be stated that the Gish Banking Company did not deposit this check to the credit of S. and Lizzie Leachman, as was directed by Blandford, but deposited it to the credit of Lizzie Leachman alone, and on the day of the deposit made

deposited to the credit of Lizzie Leachman, and also entered it upon their loose leaf ledger, as being the funds of Lizzie Leachman, which was explained by the cashier of the bank in the following way: That he knew Samuel Leachman to be in very feeble health, and had received information from Leachman's son a short time previous that he was expected to very shortly die, and that for two years past, in the renewal of his note to the bank, he had not signed his own name, and that he suggested to Blandford, after he had made out the deposit slip at Blandford's request, in the name of S. and Lizzie Leachman, that it was better to deposit it in the name of Lizzie Leachman alone, and that Blandford agreed thereto, but by mistake he money from the bank, as it might fairly be presumed that B and C after that interval did not intend to submit any joint order for the money, and it appeared that A had been compelled to pay the same money in another action to C. Bank of Le Roy v. Harding, 1 Kan. App. 389, 41 Pac. 680.

thereafter presented to the appellant, and was paid by appellant out of the funds deposited with it by C. H. Blandford & Company. This check was signed by Lizzie Leachman alone. On June 28th a draft for $1,211, signed by Lizzie Leachman, and drawn on the Gish Banking Company, and sent to another bank in Greenville for col-out a deposit slip, showing that it was lection by the Southern National Bank at Louisville, was presented to appellant for payment. The appellant declined to pay this draft, and returned it to the bank at Louisville. This draft was dated June 26th. Thereafter Woodfull deposited in the Southern National Bank, at Louisville, two other checks, signed by Lizzie Leachman, and drawn on the Gish Banking Company, and payable to Woodfull, one of which was for the sum of $800, and dated June 26th, the other was for $200, and dated June 30th, and were both deposited by Woodfull for collection in the Southern National Bank on June 30th. These checks were paid out of the funds in the bank, which had been deposited by Blandford to the credit of S. and Lizzie Leachman. This left and the other executor had committed the forgery, and had died without accounting to the estate for the money so collected. There the surviving executor of a testatrix brought an action against the bank "to recover the balance of a deposit which formerly stood in the bank to her credit or to the credit of her estate." The plaintiff had formerly given the bank notice not to pay over the deposit to his coexecutor without the plaintiff's signature. Thereafter, the other executor presented a check to the bank which was refused on the ground that it was not countersigned, and such executor thereupon took away the check and brought it back later, apparently with the plaintiff's signature upon it, and the bank paid the check.

In Kilbee v. Sneyd, 2 Molloy, 186, the court, in holding that an executor who deposited funds with a banker to the executors' account was not liable for moneys drawn out by his coexecutor, said: "It is the custom of bankers that what is deposited by one to the joint account may be withdrawn by the check of the other; and for convenience of business it is necessary this risk should be incurred, for it would be very hard to transact business if every check should be signed by all the executors."

Miscellaneous.

Where A paid into a certain bank money with directions to pay it to the joint order of B and C, and thereafter certain suits were brought against B and judgment recovered, and the sum in the bank garnisheed, and the justice ordered the bank to pay the money into court on the judgment, which it did, it was held that sixteen months after the deposit, A had a right to recover the

Where the plaintiff went with her husband to a savings bank, where she had her individual account, and authorized the transfer of the account to a joint account, and the signature book of the bank contained the entry, "both signatures required to draw," it was held that the husband was a necessary party to an action by the wife against the bank for the money. Murphy v. Franklin Sav. Bank, 131 App. Div. 759, 116 N. Y. Supp. 228.

It may be noted that in Rand v. State Nat. Bank, 77 N. C. 152, where two administrators, together with a third person, jointly made a deposit, it being agreed that the same should be drawn out upon the joint order of the three, it was considered that the administrators alone could not recover the money; the court, however, stated that this decision was not necessary to the result, as the plaintiffs' case was bad on their pleading, which alleged that they had made the deposit, and they admitted that the allegation of the answer, alleging the deposit by the three persons, was correct.

In Re Bank of Toronto, 8 Ont. Week. Rep. 323, it seems to be held that where executors dispute as to a deposit in a bank, and one sues the banker, the bank may interplead, but the case is not very clearly reported. It is generally laid down in the text-books that an action by less than all of the executors is subject to a plea in abatement. B. B. B.

gave to Blandford the slip showing the de- | count $141.55; and that Lizzie Leachman posit made to S. and Lizzie Leachman. had never made any demand for the payThis, however, was flatly denied by Blandford, who stated the facts to be as first above stated.

and denied that the $800 check or the $200 check were either of them drawn or signed by Lizzie Leachman, or that they had received any of said money, or any benefit of it, or had any knowledge that said checks were written, or drawn, or signed, or that the appellant had paid any of the checks, or that they had received or used any of the money.

ment of that sum to her. It further pleaded that the checks upon which the money was paid were written and signed It seems that Woodfull and Samuel by Lizzie Leachman, and that the appellees Leachman were brothers-in-law, their wives had full knowledge of the execution of the being sisters, and that Woodfull, shortly checks, and used and received the benefits before these transactions, had moved into of the money, and were therefore estopped the house with Leachman in Louisville, and to make any further claim against it for that they had arranged to buy a dwelling the money. The appellees, by reply, travhouse in Louisville, jointly, and were toersed all of the allegations of the answer, pay for it on the 2d day of July. On the 2d day of July, Woodfull went to the party with whom they had negotiated the purchase of the house and lot, and proposed to him that, if he would extend the time for closing the deal to the 10th of July, all the money would be paid. This proposition was refused, unless $150 of the price was paid then, and Woodfull gave a check for that amount on his account in the Southern National Bank. Between that time and the 8th of July, Woodfull drew all the proceeds of the $200 check, the $800 check, and the $70 check, excepting $11, out of the bank, and he and his wife then disappeared out of the country, and do not seem to have been heard of since. All the funds deposited to Woodfull in the South- | ern National Bank were the proceeds of the three above-named checks. Leachman's son, in order to try to carry out the trade to purchase the property in Louisville, telegraphed to the Gish Banking Company to know what sum of money was there to the credit of S. and Lizzie Leachman, and received information that there was only $140 there, and that it had been drawn out by checks payable to Woodfull.

Thereafter Sam Leachman and Lizzie Leachman instituted this suit in the Muhlenberg circuit court against the Gish Bank ing Company, to recover of it the sum of $1,211.55, which they alleged had been deposited there to their joint credit, and that the bank refused to pay it. The bank filed an answer, traversing the facts that the appellees had deposited any money there, or that either of them had made any deposit there, except in the following way: That on the 23d day of June, 1913, C. H. Blandford deposited with it the sum of $1,211.55, to the credit of Lizzie Leachman, and that by mistake the cashier had written upon the duplicate deposit slip, which it delivered to Blandford, the names of S. and

Lizzie Leachman, when in fact the deposit and account were made in the name of Lizzie Leachman, and that since that time it had been paid out upon checks drawn by Lizzie Leachman, and payable to Fred Woodfull, the sums of $70, $800 and $200; that there was left on deposit of said ac

Upon the trial of the case, a jury was not demanded, and the circuit court adjudged that the appellees recover the amount that they had sued for, less the amounts of the $70 check and the $150 check given by Woodfull as a payment on the house and lot in Louisville. The trial judge filed an opinion, setting out his conclusions of law separate from his finding of facts, and, the appellant having filed grounds for a new trial, its motion was overruled by the court. It excepted to the judgment of the court against it, and to each of the conclusions of law and finding of facts, and has appealed to this court.

The proof in this case, without controversy, shows that the entire sum of money deposited by Blandford & Company was the property of Samuel Leachman. The appellant had actual knowledge that the land for the sale of which the money was obtained was the property of Samuel Leachman, and that Lizzie Leachman had no interest in it whatever, except that she had a potential right of dower in the land, with which she parted, when she executed the deed. The appellant paid the note which Samuel Leachman and Lizzie Leachman executed to it, out of the funds. However, Blandford & Company being the agent of appellees, and directing the deposit to be made to the use of the appellees, and notifying Samuel Leachman of this fact, and he acquiescing in same, he could not be heard to complain of the money being so deposited; neither could

he complain if the bank should have paid out the money upon checks signed by him and Lizzie Leachman. Whether the deposit was made to the joint credit of S. and Lizzie Leachman was an issue of fact determined by the trial court, and its judgment was that the funds were so deposited.

The evidence and all the circumstances | This is the common sense applying to the seem to fully warrant that conclusion. proposition. When a deposit is made to a The funds being so deposited, the bank, joint account, notice is thereby fully given in the absence of special authority so to do, to the bank that each of the persons was not authorized to pay out the funds, has an interest in the funds, although the except upon a check signed by both Samuel bank may not know the extent of the inand Lizzie Leachman. The appellant does terest of any particular one. To honor not claim or pretend that it had any au- checks drawn upon the joint fund by any thority or permission from Samuel Leach- one of the depositors would enable such a man to pay out the funds upon checks one to appropriate the entire fund, without signed by Lizzie Leachman alone. It relies the knowledge or consent of his codeposfor its authority so to do upon the claim itors. If one or more of the persons making that Blandford & Company, being the agents the joint deposit should abscond, and could of S. and Lizzie Leachman, authorized it to not be found, or if one or more should perdeposit the check to the credit of Lizzie versely refuse to join his codepositors in Leachman alone. This issue of fact was, signing checks upon the joint fund the bank however, determined against appellant, as would be fully within its rights to refuse to above stated. pay out the funds, until a court of equity should be applied to, and the bank could then pay out the funds in accordance with its directions.

Funds deposited in a bank to the credit of a partnership may be lawfully paid out upon checks signed with the partnership name, although it is done by one of the partners. This may be done, because each one of the partners is the agent for the partnership, and the fund is not jointly but singly owned. The joint owners of property are not, by reason of that fact alone, agents for each other, for the purpose of a sale or disposition of the property. As to whether a bank is authorized to pay out funds deposited to the joint credit of two or more persons, upon checks signed by some of the depositors, and not by others, was before this court in the case of Columbia Finance & T. Co. v. First Nat. Bank, 116 Ky. 374, 76 S. W. 156. In that case a deposit had been made by three persons to their joint credit, and with a parol agreement between themselves and the bank that the funds were to be drawn out only upon checks which were signed by all of the three. This court said: "The purpose of depositing the money, as it was, to the credit of the three, was to prevent any one of them from appropriating it without the consent of the other two. The form of deposit showed this, outside of the parol agreement. The rule is that, if several persons made a deposit to their joint credit, the bank must have the signatures of all of them appended to the check before paying it, or it takes the risk. 2 Morse, Bkg. §§ 425-436."

While it has been held that where a deposit is made to the joint account of two or more persons, and there is nothing to show that the interests of the parties in the deposit are otherwise, the presumption will be indulged that each of them has an interest in it, equal to the interest of any other. It would necessarily follow, as a logical sequence, that if a bank, without authority, should pay out the deposit made to the joint account of several persons, its liability to each of the joint depositors would be in accordance with the interest of the depositor in the joint deposit. If one of the joint depositors had received the benefit of any part of the fund, although improperly paid out, equal to his interest in the deposit, in good conscience, he would have no grievance against the bank. Neiman v. Beacon Trust Co. 170 Mass. 452, 64 Am. St. Rep. 315, 49 N. E. 748.

Samuel Leachman and Lizzie Leachman were not a partnership. The bank had no authority from Samuel Leachman to pay out the fund deposited to their joint account upon the check of Lizzie Leachman alone. The entire deposit was the property of Samuel Leachman, and he should therefore recover the entire sum from the appellant, unless he received the benefit of the funds, although wrongfully paid out by the bank. In the absence of any parol agreement, The proof shows very conclusively that Samhowever, it seems that the rights and lia- uel Leachman did not receive any benefits bilities of the parties in the case, supra, from the money paid by appellant on the would have been the same, upon the common $200 check nor the $800 check, which were and well-known principles of the common signed with the name of Lizzie Leachman, law. The text writers all concur in the except that Woodfull paid $150 of the prodoctrine that, where a deposit is made to ceeds of those checks, upon the purchase the joint credit of several persons, the bank price of the house which he and Samuel cannot justify itself in paying out the Leachman were contemplating buying in funds, except upon a check to which the Louisville. Samuel Leachman was occupynames of all the depositors are appended.ing this house, and, when the owner learned 2 Bolles, Bkg. 593; 2 Dan. Neg. Inst. 1612. the facts in the case, he credited this sum