« AnteriorContinuar »
uel Leachman and his son, H. T. Leach- , sion for the sale, executed a check on the man, and dated 19th-20th day of elne, 23d day of June to the Gish Banking Comdirecting them to make the sale at that pany for $1,591.55, on "account of S. and price, and to deposit the money, less the Lizzie Leachman.” In order to prepare this commission to be paid, in the bank of deed, Blandford had gone into the bank Gish Banking Company. The telegram and obtained the mortgage, which it held further notified the real estate firm that against Leachman, to obtain the boundary the deeds were in the Gish Banking Com of the property, for the purpose of preparpany.
As soon as the trade was closed, ing the deed. When he deposited this Samuel Leachman and his wife, Lizzie check, D. H. Lam, the cashier of the bank, Leachman, executed a deed to the purchaser made out a deposit slip, showing the defor the land, and on the 23d day of June posit of $1,211.55 in the bank to the credit C. H. Blandford, representing the real es- of Lizzie Leachman. tate firm, after paying the taxes due upon It seems that the note which Samuel the property, and taking out his commis- | Leachman owed at the bank amounted to
Compare Stone v. Union Sav. Bank, in- good, distinguished the case of bankers, and fra, “Executors."
“There can be no doubt that a man Where one of two trustees being about to may pay a debt to one of several to whom depart for Europe obtained an order from he is indebted jointly. The case of bankers the court, authorizing his cotrustee, in his stands upon special grounds. Where trusabsence, to receive the purchase money of a tees or others have a joint account with sale which the trustees had made of trust them as bankers, it is usual to require the property, “and in all respects to act as fully authority of the whole to pay the money. in all matters pertaining to said trust as if But that arises from the peculiar contract both were present and acting," and the and relation between bankers and their other trustee received a check for such customers." purchase money indorsed to the order of But while, as just stated, it is not intend. both trustees, which was deposited to ed to take up the general question of the their joint credit, and thereafter he drew powers of one of two trustees, the foregoing out and misappropriated a considerable case ought not to be passed without referportion of the money by check signed by ring to some of the other authorities. In himself, trustee, and which he also signed Walker v. Symonds, 3 Swanst. 63, Lord in the name of the other trustee, by him. Eldon said: “Without going through all self, it was held that the bank must re- the cases, it is obvious that prima facie spond to the trust fund for the money. there is this distinction between executors (The check given by the defaulting trus- and trustees: that one executor can, and one tee was a check originally signed by him. trustee cannot, give a discharge.” In Can self as trustee, to pay a claim due from v. Read, 3 Atk. 695, it was held that a him as "Trustee” of a certain business debtor to a bankrupt who has three asconcern, and the bank paid this check signees is entitled to pay the money into by an arrangement with him by which court where there is a dispute between the he was to add the other signature; and the assignees, two of them claiming the propcourt paid particular attention to the fact erty as the property of the bankrupt, and that the bank paid the check as originally the other joining with the other defendant drawn by one trustee, and permitted it to in claiming the property as held by the pass through the clearing house, to be paid bankrupt simply as a factor or agent. The after having first notified the payee's bank lord chancellor held that the payment would that the check was not good, but would not be an absolute discharge unless all the probably be made right during the day, and assignees should join in the receipt, as he later it instructed the payee to redeposit it. considered that the assignees were in the The court pointed out that if the check had nature of trustees, and not executors, who come to the payee with the names of both were considered as distinct persons. And trustees, very likely he would have refused in Ex parte Rigby, 19 Ves. Jr. 463, 2 Rose, to receive it, and the misapplication of the 224, where it was held that one of two trusproceeds might thus have been avoided.) tees in bankruptcy could not sign the bankSwift v. Williams, 68 Md. 236, 11 Atl. 835. rupt certificate, Eldon, Ld. Ch., said that
In Hill on Trustees, 4th Am. ed. *308, one executor can do any act, but that it is it is said that it is in the power of trustees not so as to trustees, (but the petition stood to require that checks shall be signed by all over on its being stated that the cotrustee or any one of their number.
had given authority to the other to act for While it is not intended in this note to him, the court saying that this would be take up the general question of the powers sufficient on proof of it). of one of two trustees, it may be noted that it has been stated in one case that the case
orders of court. of bankers was one standing upon special grounds. Thus, in Husband v. Davis, 10 C. In Ex parte Collins, 2 Cox, Ch. Cas. 427, B. 645, the court, in holding that where two where five assignees in bankruptcy paid the are jointly entitled to the money on a bond money into a bank, one of them died, and as trustees, a payment to one of them is another one went abroad and did not an.
$380, which 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 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 given by the court below, which said: “It would permit another shilling of a bank- were futile to open a joint account, if one of rupt's property to be paid into the bank if the depositors could withdraw the money. it were not to be subject to his control All must, therefore, unite in the receipt or afterwards.
check, in order to discharge the banker; Similarly, where three assignees opened and it follows that he cannot rely on a an account in a bank, and one of them ab- compromise or release by one a de. sconded, and the bank declined to pay on fense.
It results from what has checks signed by the other two, the court, on been said that the right of executors to authority of Ex parte Collins, supra, made sever in the execution of the trust is a conthe order directing the bank to pay checks cession to expediency, which should not be so signed. Ex parte Hunter, 1 Meriv. 408, made when the case is one for care and 2 Rose, 363.
judgment, and it is possible for all to unite In this connection it may be noted that without inconvenience. It does not, there. where dividends of a trust fund standing in fore, exist, where a fund arising from the the name of the accountant general were collection or sale of the assets comes to the payable to five trustees residing in various hands of two or more executors or adminislocalities, the fund being a small balance, it trators, or has been deposited to their acwas ordered that it might be paid to the count.” trustees or to one of them. Shortbridge's (See also an observation of Ashman, J., in Case, 12 Ves. Jr. 28. And that in Atty. Power's Estate, 15 Phila. 539, suggesting Gen. v. Brickdale, 8 Beav. 223, the trustees that one executor is chargeable with the of a charity being very numerous, it was amount of a deposit of moneys of the estate ordered that dividends from a fund in court in the joint names of himself and the other might be paid to the trustees or to any two executor.) of them.
In Allen v. Louisiana Nat. Bank, supra,
where three executors opened an account Executors.
with a bank, and two of them gave the While there is no doubt that a bank may third a power of attorney to draw, and lawfully pay to one of several executors its later, one of those giving the power notified debt to the decedent, the authorities are not the bank not to honor any checks which entirely agreed as to whether a bank may were not signed by him, and also that he pay out on the order of one executor money had canceled and withdrawn the power, it of the estate deposited by more than one was held on a mandamus, that the bank executor. That all the executors should would not be forced to pay a check signed join in the order is held in De Haven v. by only two of the executors, but the court Williams, 80 Pa. 480, 21 Am. Rep. 107, and ordered that the cause should be remanded in Allen v. Louisiana Nat. Bank, 50 Lą. in order that the executor who had refused Ann. 366, 23 So. 360. The contrary view is his permission, might be joined. (It may taken in Stone v. Union Sav. Bank, 13 R. I. be noted that it seems that in Louisiana an 25, where, however, it is not clear from the action may be sustained by one of several report whether the deposit may not have joint obligees. See Hincks v. Converse, 38 been originally made by the decedent. La. Ann. 871.)
In De Haven v. Williams, supra, where In Stone y. Union Sav. Bank, supra, it two executors deposited money with bank- / was held that a bank was not liable for pay.. ers, and later one of the executors joined in ing money on a check to which one of the a composition of the bankers with their two executors' names had been forged, alcreditors, by the terms of which agreement though it had been notified by such executor all the property of the bankers passed to a 'not to honor checks without his signature, thereafter presented to the appellant, and in the bank, to the credit of that fund, was paid by appellant out of the funds $141.55. It should be stated that the Gish deposited with it by C. H. Blandford & Banking Company did not deposit this Company. This check was signed by Lizzie check to the credit of S. and Lizzie LeachLeachman alone. On June 28th a draft man, as was directed by Blandford, but de. for $1,211, signed by Lizzie Leachman, and posited it to the credit of Lizzie Leachman drawn on the Gish Banking Company, and alone, and on the day of the deposit made sent to another bank in Greenville for cold out a deposit slip, showing that it was lection by the Southern National Bank at deposited to the credit of Lizzie Louisville, was presented to appellant for Leachman, and also entered it upon their payment. The appellant declined to pay loose leaf ledger, as being the funds of this draft, and returned it to the bank at Lizzie Leachman, which was explained by Louisville. This draft was dated June the cashier of the bank in the following 26th. Thereafter Woodfull deposited in the way: That he knew Samuel Leachman to Southern National Bank, at Louisville, two be in very feeble health, and had received other checks, signed by Lizzie Leachman, information from Leachman's son a short and drawn on the Gish Banking Company, time previous that he was expected to very and payable to Woodfull, one of which was shortly die, and that for two years past, for the sum of $800, and dated June 26th, in the renewal of his note to the bank, he the other was for $200, and dated June had not signed his own name, and that he 30th, and were both deposited by Woodfull suggested to Blandford, after he had made for collection in the Southern National out the deposit slip at Blandford's request, Bank on June 30th. These checks were in the name of S. and Lizzie Leachman, paid out of the funds in the bank, which that it was better to deposit it in the name had been deposited by Blandford to the of Lizzie Leachman alone, and that Blandcredit of S. and Lizzie Leachman. This left ford agreed thereto, but by mistake he and the other executor had committed the money from the bank, as it might fairly forgery, and had died without accounting to be presumed that B and C after that inthe estate for the money so collected. There terval did not intend to submit any joint the surviving executor of a testatrix brought order for the money, and it appeared that A an action against the bank “to recover the had been compelled to pay the same money balance of a deposit which formerly stood in in another action to C. Bank of Le Roy v. the bank to her credit or to the credit of her | Harding, 1 Kan. App. 389, 41 Pac. 680. estate." The plaintiff had formerly given Where the plaintiff went with her husthe bank notice not to pay over the deposit band to a savings bank, where she had her to his coexecutor without the plaintiff's individual account, and authorized the signature. Thereafter, the other executor transfer of the account to a joint account, presented a check to the bank which was re- and the signature book of the bank confused on the ground that it was not counter- tained the entry, "both signatures required signed, and such executor thereupon took to draw,” it was held that the husband was away the check and brought it back later, a necessary party to an action by the wife apparently with the plaintiff's signature against the bank for the money. Murphy v. upon it, and the bank paid the check. Franklin Sav. Bank, 131 App. Div. 759, 116
In Kilbee v. Sneyd, 2 Molloy, 186, the N. Y. Supp. 228. court, in holding that an executor who de- It may be noted that in Rand v. State posited funds with a banker to the execu- Nat. Bank, 77 N. C. 152, where two adtors' account was not liable for moneys ministrators, together with a third person, drawn out by his coexecutor, said: “It is jointly made a deposit, it being agreed that the custom of bankers that what is deposit i the same should be drawn out upon the joint ed by one to the joint account may be with- order of the three, it was considered that drawn by the check of the other; and for the administrators alone could not recover convenience of business it is necessary this the money; the court, however, stated that risk should be incurred, for it would be very this decision was not necessary to the rehard to transact business if every check sult, as the plaintiffs' case was bad on their should be signed by all the executors.” pleading, which alleged that they had made
the deposit, and they admitted that the Miscellaneous
allegation of the answer, alleging the deposit
by the three persons, was correct. Where A paid into a certain bank money
In Re Bank of Toronto, 8 Ont. Week. Rep. with directions to pay it to the joint order 323, it seems to be held that where executors of B and C, and thereafter certain suits dispute as to a deposit in a bank, and one were brought against B and judgment re- sues the banker, the bank may interplead, covered, and the sum in the bank garnisheed, but the case is not very clearly reported. It and the justice ordered the bank to pay the is generally laid down in the text-books that money into court on the judgment, which it an action by less than all of the executors did, it was held that sixteen months after / is subject to a plea in abatement. the deposit, A had a right to recover the
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 Bland-ment of that sum to her. It further ford, who stated the facts to be as first pleaded that the checks upon which the above stated.
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, trav. house in Louisville, jointly, and were to ersed all of the allegations of the answer, pay for it on the 2d day of July.' On the and denied that the $800 check or the $200 2d day of July, Woodfull went to the party check were either of them drawn or signed with whom they had negotiated the pur- by Lizzie Leachman, or that they had rechase of the house and lot, and proposed ceived any of said money, or any benefit to him that, if he would extend the time of it, or had any knowledge that said for closing the deal to the 10th of July, checks were written, or drawn, or signed, all the money would be paid. This propo- or that the appellant had paid any of the sition was refused, unless, $150 of the checks, or that they had received or used price was paid then, and Woodfull gave any of the money. a check for that amount on his account in Upon the trial of the case, a jury was not the Southern National Bank. Between that demanded, and the circuit court adjudged time and the 8th of July, Woodfull drew that the appellees recover the amount that all the proceeds of the $200 check, the $800 they had sued for, less the amounts of the check, and the $70 check, excepting $11, out $70 check and the $150 check given by of the bank, and he and his wife then dis. Woodfull as a payment on the house and appeared out of the country, and do not lot in Louisville. The trial judge filed an seem to have been heard of since. All the opinion, setting out his conclusions of law funds deposited to Woodfull in the South-separate from his finding of facts, and, the ern National Bank were the proceeds of appellant having filed grounds for a new the three above-named checks. Leachman's trial, its motion was overruled by the court.
in order to try to carry out the trade It excepted to the judgment of the court to purchase the property in Louisville, tele against it, and to each of the conclusions graphed to the Gish Banking Company to of law and finding of facts, and has apknow what sum of money was there to the pealed to this court. credit of S. and Lizzie Leachiman, and re- The proof in this case, without controceived information that there was only $140 versy, shows that the entire sum of money there, and that it had been drawn out by deposited by Blandford & Company was the checks payable to Woodfull.
property of Samuel Leachman. The appelThereafter Sam Leachman and Lizzie lant had actual knowledge that the land for Leachman instituted this suit in the Muh- the sale of which the money was obtained lenberg circuit court against the Gislı Bank- was the property of Samuel Leachman, and ing Company, to recover of it the sum of that Lizzie Leachman had no interest in it $1,211.55, which they alleged had been de whatever, except that she had a potential posited there to their joint credit, and that right of dower in the land, with which she the bank refused to pay it. The bank filed parted, when she executed the deed. The an answer, traversing the facts that the appellant paid the note which Samuel appellees had deposited any money there, Leachman and Lizzie Leachman executed to or that either of them had made any de- it, out of the funds. However, Blandford posit there, except in the following way: & Company being the agent of appellees, and That on the 230 day of June, 1913, C. H. directing the deposit to be made to the use Blandford deposited with it the sum of of the appellees, and notifying Samuel $1,211.55, to the credit of Lizzie Leachman, Leachman of this fact, and he acquiescing in and that by mistake the cashier had written upon the duplicate deposit slip, which it same, he could not be heard to complain of delivered to Blandford, the names of S. and the money being so deposited; neither could Lizzie Leachman, when in fact the deposit
he complain if the bank should have paid and account were made in the name of out the money upon checks signed by him Lizzie Leachman, and that since that time and Lizzie Leachman. Whether the deposit it had been paid out upon checks drawn by was made to the joint credit of S. and Lizzie Leachman, and payable to Fred Lizzie Leachman was an issue of fact deWoodfull, the sums of $70, $800 and $200; termined by the trial court, and its judgthat there was left on deposit of said ac- ment 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 Funds deposited in a bank to the credit of should be applied to, and the bank could a partnership may be lawfully paid out then pay out the funds in accordance with upon checks signed with the partnership its directions. name, although it is done by one of the part. While it has been held that where a deners. This may be done, because each one posit is made to the joint account of two of the partners is the agent for the partner or more persons, and there is nothing to ship, and the fund is not jointly but singly show that the interests of the parties in the owned. The joint owners of property are deposit are otherwise, the presumption will not, by reason of that fact alone, agents for be indulged that each of them has an intereach other, for the purpose of a sale or dis est in it, equal to the interest of any other. position of the property. As to whether a It would necessarily follow, as a logical sebank is authorized to pay out funds depos- quence, that if a bank, without authority, ited to the joint credit of two or more per should pay out the deposit made to the joint sons, upon checks signed by some of the account of several persons, its liability to depositors, and not by others, was before each of the joint depositors would be in this court in the case of Columbia Finance accordance with the interest of the depositor & T. Co. v. First Nat. Bank, 116 Ky. 374, in the joint deposit. If one of the joint 76 S. W. 156. In that case a deposit had depositors had received the benefit of any been made by three persons to their joint part of the fund, although improperly paid credit, and with a parol agreement between out, equal to his interest in the deposit, in themselves and the bank that the funds were good conscience, he would have no grievance to be drawn out only upon checks which against the bank. Neiman v. Beacon Trust were signed by all of the three. This court Co. 170 Mass. 452, 64 Am. St. Rep. 315, 49 said: "The purpose of depositing the N. E. 748. money, as it was, to the credit of the three, Samuel Leachman and Lizzie Leachman was to prevent any one of them from ap- were not a partnership. The bank had no propriating it without the consent of the authority from Samuel Leachman to pay other two. The form of deposit showed this, out the fund deposited to their joint account outside of the parol agreement. The rule is upon the check of Lizzie Leachman alone. that, if several persons made a deposit to The entire deposit was the property of Samtheir joint credit, the bank must have the uel Leachman, and he should therefore resignatures of all of them appended to the cover the entire sum from the appellant, check before paying it, or it takes the risk. unless he received the benefit of the funds, 2 Morse, Bkg. SS 425-436."
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 occupy. names 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