66 Mo. App. 531 | Mo. Ct. App. | 1896
Plaintiff in -this case is the executor of ¥m. T. Horner, deceased, and as such on March 1, 1893, received from one Little, a draft for $800 and a check for a small interest thereon, said sums being in discharge of an indebtedness from Little to plaintiff’s testator. Plaintiff deposited the $800 draft in the Bank of Commerce at Springfield, Missouri, taking therefor the following certificate:
“Bank of Commerce, No. 3783.
“Springfield, Mo., March 13, 1893.
“$800.
“W. H. Payne, Jr., has deposited in this bank eight hundred dollars payable in current funds to the order of himself on the return of this certificate properly indorsed, with interest at the rate of 5 or 6 per cent per annum if left 6 or 12 months.
“Ed. P. Newman, Cashier.
“Not subject to checks.”
At the time of this deposit plaintiff told the cashier that the money belonged to an estate of which he was administrator; that he wanted to draw interest and would need it to make his final settlement, just when he could not say. The cashier replied that the deposit, if left twelve months, would draw six per cent interest; if left six months, five per cent interest; and that it
It is admitted that plaintiff’s final settlement is correct in all respects, except as to the above credit claimed by him by reason of the failure of the bank. It is not claimed, under the facts in this record, that plaintiff was negligent in selecting the Bank of Commerce as a depository of the money of the estate in his hands. It is insisted, however, that it was his duty to-preserve the distinctive character of the fund deposited, and that, in failing so to do and taking a certificate of deposit in his individual name, he was guilty of a technical conversion. This proposition is controverted by plaintiff, on the ground that the facts .and circumstances in evidence show that the deposit in the bank was the money of the estate and was impressed with a trust in favor of the estate by the remark made at the time by the executor to the cashier of the bank. The remark in question was a mere general statement, that the money was that of an estate of which the depositor was administrator. It did not in any way specify what
The case of Atterberry v. McDuffee, 31 Mo. App. 603, cited by the learned counsel for appellant, is not adverse to this view either upon the point in judgment or the doctrine announced therein. In that case it was distinctly shown that the money deposited by the executor in the bank was that of the estate represented by him; that the bank knew that fact, and that its officers were directed to make out a certificate of deposit in the name of the executor; that this direction was disobeyed by the bank without the knowledge of the executor, who put the certificate in his pocket without
An executor is a statutory trustee. While the law only holds him in the management of the estate to that measure of diligence and prudence which prudent men of discretion and intelligence in such matters employ in their own affairs, yet it forbids him to take'title to himself for the purpose of speculating in its assets. It is no excuse for failure of duty in this regard to say that the loss would have happened all the same, if the executor in the case at bar had caused the certificate of deposit to be made out in his name as such. It was his duty to take the certificate of deposit in his name as executor. If this had been done, no question could have arisen as to the fairness of the transaction nor as to his right to a credit for the unforeseen failure of the bank. On the other hand, had such failure not happened, there is nothing in the evidence in this record showing conclusively that the estate could have sue
Our conclusion is that sound policy justifies the finding of the circuit court, that the executor was not entitled to the credit' claimed. The judgment will, therefore, be affirmed.