Davis v. Windsor Savings Bank

46 Vt. 728 | Vt. | 1874

The opinion of the court was delivered by

Pierpoint, Ch. J.

The only question presented by the bill of exceptions is, whether the defendant bank was justified in paying the money which it held to the credit of the deceased, to Mrs. Dudley, his sister, who deposited the money in the bank as his agent, such payment being made after the revocation of her agency by the death of her principal, said bank having no knowledge of such death, and paid the money in good faith. That the death of the principal terminates the agency, all the authorities agree ; but the effect of such death upon the acts of those who in good faith deal -with the agent without knowledge of the death, is a subject upon which there is some diversity of decision. But the wgight of authority seems to be decidedly in favor of the principle, that the death of the principal instantly terminates the power of ttíe agent, and that all dealings with the agent subsequent to that event, are void and of no effect, even though the parties were ignorant of that faot.'^KENT lays down the rule, that “ the authority of an agent determines by the death of his principal. By the civil law, the acts of an agent done bona fide after the death of the principal, and before notice of his death, are valid and binding on his representatives. But this equitable principle does not prevail in the English law, and the death of the principal is an instantaneous revocation of the authority of the agent, unless the power be coupled with an interest.” 2 Kent Com. 646. Story lays down the same doctrine, and says : “As the act of the agent must, if done at all, be done in the name of the principal, it is impossible that it can properly be done, since a dead man can do no act, and we have already seen that every authority executed for another person, presupposes that the party could at the time, by his personal execution of it, have made-the act validand numerous authorities, both English and American, are referred to in support of the position. This principle was expressly held in Bank v. The Estate of Leavenworth, 28 Vt. 209, and also in Mich. Ins. Co. v. Leavenworth, 30 Vt. 11. In the latter case, Judge Bennett, in delivering the opinion, says : “ Though it may be true that when a power is revoked by the act of the party, notice may be necessary, yet when revoked by his death, the revocation at once takes effect; f and if an act is subsequently done under the power,, though without notice of the death of the party, the act is void.” Many other cases might be referred to in support of the rule, but I do not deent* it necessary.

A different doctrine was held in Cassidy v. McKenzie, 4 Watts & Sergt. 282 ; but as is said in a note in 2 Kent Com. 873, “ It is substituting the rule of the civil for the rule of the common law.”

Indeed it is difficult to see how there can be an agent when there is no principal. The question whether in this case there was an interest coupled with the agency, and some other questions that were discussed in the argument, do not arise upon the exceptions as made up.

Judgment reversed, and cause remanded.