58 So. 423 | Ala. | 1912
“A trustee may deposit money temporarily in some responsible bank or banking house; and if he acted in good faith and with discretion, and deposited the money to a trust account, he will not bé liable for its loss, * * * but he will be liable for the money in case of a failure of the bank, or for its depreciation, if he deposits it to his own credit, and not to the. separate account of the trust estate.” — Perry on Trusts, § 443. Again, this writer says, in section 463: “So if the trustee pays the money into a bank in his own name, and not in the name of the trust, he will'be responsible for the money in case of the failure of the bank.” This general rule is not only recognized by our .own court, but by all well-considered cases.—Ditmar v. Bogle, 53 Ala. 169; Booth v. Dexter Co., 118 Ala. 369, 24 South. 405. Where an administrator or trustee, with trust funds in his hands, deposits them in his own name
If the administrator deposits trust funds in a bank and takes therefor a certificate of deposit in his own name individually, the deposit is at his own risk, and the loss will fall on him in the event of a failure of the bank. Nor will the fact that he informed the bank at the time of deposit that the funds belonged to an estate of which he was administrator alter the liability.—In re Hornor's Estate, 66 Mo. App. 531. We are much impressed with the soundness of the well-considered case of Naltner v. Dolan, 108 Ind. 500 [8 N. E. 289, 58 Am. Rep. 61], and from which we quote: “The authorities, however, distinguish between cases in Avhich the deposit Avas made in such a manner as to preserve its trust character on the books of the bank in Avhich the fund Avas deposited, and those in which the owner of the fund might be put to the trouble of proving by extraneous evidence that the fund was not the individual money of his trustee. Whenever a trustee, unless properly authorized to do so, puts the fund in such shape as to invest himself with a legal title to it, the cestui que trust has his election, either to treat the fund, according to the'appearance of things, as the property of the trustee, .and regard the latter as his debtor, dr he may demand that the title be transferred to him. If a deposit is made in such manner as, on the face of the books of the hnnk
This appellee insists that the deposit, while appearing upon the bank ledger and from the certificate of deposit to his individual credit, was in fact made by him as administrator; that the cashier kneAv that it was trust funds; and that he instructed him to make the deposit to him in his representative capacity. In the case of Atterberry v. McDuffee, 31 Mo. App. 603, an administrator AAms relieved of liability by showing that the entry of the deposit to his individual credit was an error; that it was distinctly shown that the money deposited was that of the estate; that the bank knew that fact, and the officers of the bank Avere instructed to make out a certificate of deposit in the name of the executor; that this direction was disobeyed by the bank without the knowl
The probate court ignored the great preponderance of the evidence, and the decree is reversed, and the cause is remanded.
Reversed and remanded.