Lindemann v. Rusk

125 Wis. 210 | Wis. | 1905

SiebecKER, J.

It is argued tbat tbe functions of tbe personal representatives of Jeremiab M. Rusk, deceased, bad terminated at tbe time tbey were given tbe right to file tbe cross-bill in tbis action, and tbat tbey therefore could not prosecute it for tbe benefit of bis estate and of the legatees imder bis will. It is undisputed that tbey bad been appointed in January, 1894, as executors of bis will, more than six years prior to tbe application and tbe order permitting them to be made parties in tbis action; tbat tbe estate bad not been finally settled; and tbat no order extending the time for tbe settlement of tbe estate bad been made by tbe county court, wherein the proceedings were pending. Tbe claim is tbat tbe statutes providing for tbe payment of debts and legacies and tbe rendering of an account by an executor or administrator impose a time limit wherein tbey must act, and tbat their functions cease at tbe expiration of such period. Tbe statute (Stats. 1898, sec. 3850) relating to settlements of estates provides tbat, on application of an executor or administrator for further time tq settle tbe estate, “the-court may, in its discretion, grant such further time for tbe payment of tbe debts and legacies and tbe settlement of tbe estate as tbe nature of tbe case may require, and may extend tbe time upon like petition and notice; but in no case shall the time be extended beyond six years from the time of granting letters testamentary or of administration.” This provision declaring that county courts have no power to grant extensions of time to settle estates beyond six years from the time of the issuance, of letters testamentary or of administration has been held in Scott v. West, 63 Wis. 529, 24 N. W. 161, 25 N. W. 18, and Ford v. Ford, 88 Wis. 122, 59 N. W. 464, not to limit the functions of an executor after such period, and that, if no final settlement is had before its expiration, he is required thereafter to administer the estate under the will. As these decisions indicate, it might result in serious injury to persons beneficially interested if an estate were left without an executor or administrator at any point of time before its final distribution, and especially when the nature of his duties under the will and the matters involved in the settlement of the estate require a longer time. Under such circumstances the functions of an executor continue until final settlement or until he is otherwise discharged. We» are not fully advised as to the necessity of continuing the-administration of this estate beyond such a time, but we must presume that valid reasons exist, since no steps have been-taken to compel a termination of the proceedings in county court. Mackin v. Hobbs, 116 Wis. 528, 93 N. W. 462; Larzelere v. Starkweather, 38 Mich. 96.

It is contended that the alleged cause of action set out in; the cross-bill for the wrongful appropriation of the good will by William E. Lindemann, as administrator of the bank’s affairs, does not suiwive his death, under sec. 4253, Stats. 1898. Assuming for the time that the cross-bill is sufficient to constitute a cause of action, it is clear that the relationship of the deceased to the assets of the bank was that of a trustee, under the powers given by sec. 1764, Stats. 1898. He, in his capacity as such trustee, is charged in this bill with a wrongful appropriation of the assets. Any misconduct in his administration of the bank’s affairs is misconduct in his fiduciary capacity, and is primarily an injury to tbe estate of tbe corporation, for wbicb a recovery may be enforced in tbe right of tbe corporation for tbe protection of those beneficially interested in tbe property. In this aspect tbe liability is not a mere claim of damages for a tort, but one for an injury to personal estate, wbicb survives under sec. 4253, or it may be enforced in an action for an accounting in equity, subsisting at common law, and enforcible against tbe personal representatives. John V. Farwell Co. v. Wolf, 96 Wis. 10, 70 N. W. 289, 71 N. W. 109; Killen v. Barnes, 106 Wis. 546, 82 N. W. 536; Somervaill v. McDermott, 116 Wis. 504, 93 N. W. 553; Harrigan v. Gilchrist, 121 Wis. 127, 340, 99 N. W. 909.

It is also claimed that tbe cross-bill cannot be maintained in this action in tbe circuit court, since Mr. Lindemann is deceased, and bis estate is solvent and in process of administration,- and since tbe time for filing claims against -it has not expired; in other words, that the claim on wbicb tbe action is founded must first be presented to and passed upon by tbe county court. Tbe position is tahen that tbe county court has original and exclusive jurisdiction of all claims and demands, of whatever nature, against estates of decedents. This jurisdiction is not as exclusive as here insisted, but is subject to tbe modification established in Gianella v. Bigelow, 96 Wis. 185, 71 N. W. 111, wherein it is. said:

■' '“Although tbe ordinary jurisdiction .of courts of equity -over administrations has been taken away and conferred on probate courts, or has become obsolete; yet there still remains an auxiliary or supplementary jurisdiction, to be exercised in exceptional cases, where the jurisdiction of tbe probate courts is confessedly inadequate, or has been found insufficient; and tbe jurisdiction over estates, interests, and primary rights, purely equitable, and to administer equitable remedies, is nowhere lost merely because tbe interest, right, or remedy grows out of or is connected with tbe estate of a deceased person wbicb is in tbe course of administration, even tbougb tbe administration proper, the accounting, and final settlement are carried on under tbe exclusive jurisdiction of another tribunal.”

It must also be remembered that when a circuit court has determined that an exceptional case of this nature is presented, and has taken jurisdiction thereof, unless clearly erroneous its decision will not be disturbed. Burnham v. Norton, 100 Wis. 8, 75 N. W. 304 The judicial policy on this. subject received legislative approbation by the amendment to sec. 3845, Stats. 1898, by ch. 5, Laws of 1899, which designates specifically what actions may be prosecuted against executors and administrators, and then adds the class, “and other actions in which the county court cannot afford a remedy as adequate, complete, prompt, or efficient as the circuit court.” Under the facts presented it is apparent that it was important that, if any liability existed against the estate,, all the parties beneficially interested in the recovery, as well as the bank, should be before the court, and- that this recovery be enforced in its right, which result could be most effectually and efficiently accomplished in an action for wind-, ing up the bank’s affairs and for. the distribution of its estate among creditors and stockholders.

It is also asserted that the receiver has the right to prosecute this claim against the estate, and that he could have proceeded as effectually in county court as in this action in circuit court. This contention disregards the interests of those beneficially interested in the bank property and their right to participate in the litigation for the enforcement of their interests in the matter. As equitable owners they have the rights of parties in the litigation, and they must not be deprived of the right to prosecute for the protection of those interests. These circumstances clearly bring the case within the exception above mentioned, and the circuit court acted properly in retaining jurisdiction and in directing that the claim be litigated and adjudicated in this action. Among recent decisions of this court sustaining tbe ruling of tbe court tbe following are cited: Burnham v. Norton, supra; Meyer v. Garthwaite, 92 Wis. 571, 66 N. W. 704; Gager v. Paul, 111 Wis. 638, 87 N. W. 875; Becker v. Chester, 115 Wis. 90, 91 N. W. 87, 650; Harrigan v. Gilchrist, 121 Wis. 127, 99 N. W. 909.

Another claim urged upon our attention is tbat, if any cause of action existed against tbe Lindemann estate upon tbe grounds alleged in tbe cross-bill, it could only be maintained by tbe receiver of tbe bank, and it was therefore error to permit tbe personal representatives under tbe Rusk will to prosecute it by cross-bill in this action. Under sec. 1764, Mr. Lindemann, as surviving director, bad tbe right to take possession of tbe bank’s property for its administration and final distribution. In this capacity be acted as trustee for those interested either as creditors or stockholders in tbe property. We then have a trustee and cestuis que trustent, tbe former holding tbe property subject to tbe equitable ownership of tbe latter. Any wrongful act by tbe one in possession through which the corpus of 'the estate was impaired was a direct injury to tbe beneficial owners, and equity recognizes their right to protect their interest and tbat of tbe estate if it can be reached by some equitable remedy. Since tbe trust relation existed between tbe Rusk executors and Lindemann as tbe surviving director and administrator of tbe property, which it is alleged be wrongfully appropriated, tbe former could, in an appropriate proceeding, enforce an accounting by tbe latter for tbe value of tbe property so wrongfully converted. This liability, being germane to tbe principal cause of action for tbe winding up of the bank’s affairs, is properly enforcible as a part of such proceeding. It was held in Gores v. Day, 99 Wis. 276, 74 N. W. 787:

“Directors are liable to be charged as trustees of property fraudulently misapplied or wasted by them, independent of any statute on tbe subject, but tbe duty of enforcing such liability is in the managing officers of the corporation, though, it may be performed by the stockholders or creditors or possibly the assignee or successor of a corporation, when the circumstances are such as to make that necessary, independent ■of any statute on the subject.”

No difference in result is apparent whether the receiver appointed in this action or the Eusk executors, as equitable •owners of the property diverted by the trustee, prosecute the claim to compel restitution of the amount converted by the trustee, since the recovery, under either course, is for the benefit of the estate in the court’s custody, to be administered by it through the receiver. The object of the proceeding “is to accumulate in custodia, legis, in the form of money, the assets properly belonging to trust funds, so that an order of distribution may be made.” The executors of the Eusk estate had an interest in the bank’s property, and were under obligation to enforce every right growing out of it for the conservation of the estate, and to this end the court properly permitted them to prosecute the cross-bill. Land, L. & L. Co. v. McIntyre, 100 Wis. 245, 75 N. W. 964; Cunningham v. Wechselberg, 106 Wis. 359, 81 N. W. 414; Michelson v. Pierce, 107 Wis. 85, 82 N. W. 707; Harrigan v. Gilchrist, 121 Wis. 127, 99 N. W. 909.

This action was prosecuted to final judgment after three years from the time the bank ceased to conduct a banking business under its articles of incorporation. It is strenuously insisted that at this time the corporation was extinct for all purposes, and that all actions then pending by or for it in its behalf abated. The claim is made upon the grounds that the power conferred by sec. 1764, Stats. 1898, to extend the corporation for three years to wind up its affairs .is exclusive of any other right or remedy for that purpose, and that, under the common-law rule, debts due it or owing by it are extinguished, and that its personal property then undis-posed of escheats to the state and its real estate reverts to its grantors or donors. If these propositions are well founded tbe legal consequences are certainly weighty and far-reaching, and there should be no uncertainty in their application for the ascertainment of private property rights and of those of the state within their operation. True, there are cases declaring that the dissolution of a corporation is followed by such results, but the trend of modern adjudications on the subject disavows that such were the doctrines of the common law as regards moneyed or commercial corporations. The result of the adjudications seems correctly and well stated by Chancellor Kent. He observes:

“The rule of the common law has in fact become obsolete and odious. It never has been applied to insolvent or dissolved moneyed corporations in England. The sound doctrine now is, as shown by statutes and judicial decisions, that the capital and debts of banking and other moneyed corporations constitute a trust fund and pledge for the payment of creditors and stockholders, and a court of equity will lay hold of the fund and see that it be duly collected and applied.” 2 Kent, Comm. 307, note.

The reason usually assigned for rejecting the old rule and holding it inapplicable is that the rule had its origin at a time when corporations dealt almost exclusively with municipal, ecclesiastical, and eleemosynary affairs, and when the modem business corporation was unknown, and that the growth of these moneyed corporations necessitated the application of principles which would protect the private property interests of persons dealing with them under the changed conditions. To this end the rights aud interests in and to the property of business corporations are, in their essentials and nature, considered to be like those pertaining to partnership organizations; and when such corporation dissolves and thereby loses legal capacity to preserve its estate, a court of equity will, if necessary, lay hold of its assets to compel a final liquidation of its affairs and a distribution of the capital among the stockholders as in partnership associations. As stated in Coleman v. White, 14 Wis. 700, on the subject of banking corporations:

“The stockholders stand on substantially the same footing as though they were partners of an incorporated association, save only the responsibility of each is limited to a sum equal to his share or shares of stock . . . and their liability more nearly resembles that of copartners than any other with which it can be compared.” Mason v. Pewabic M. Co. 133 U. S. 50, 10 Slip. Ct. 224; Bacon v. Robertson, 18 How. 480; Bewick v. Alpena H. I. Co. 39 Mich. 700.

It is argued that the provision of sec. 1764 was intended by the legislature to furnish a remedy under these conditions, and that it therefore is exclusive of any other remedy to liquidate corporate affairs. The contention seems an unwarranted construction of this statute, in view of the requirements for the protection of private rights and interests in its assets. This section, in effect, extends the life of a corporation for three years to accomplish final liquidation of its affairs through its directors, and there is nothing which suggests that the usual equitable remedies should not be resorted to at the expiration of such period, if the directors fail to accomplish this 'object within that time. The statute prescribes that the directors shall continue to act for the corporation as legal administrators, with full power to settle its affairs, “subject to the power of any court of competent jurisdiction to make in any case a different provision.” This provision is indicative of a legislative intent not to limit or abrogate the powers vested in the courts to take in custody corporate property and assets for liquidation of its affairs and distribution of. its property. This construction is in accord with the usual practice in the wind-up action under the statutes of the state, and is sustained in principle by those cases.

This action was commenced within the three years immediately following the time to which the articles of incorporation limited the corporation to do a banking business, but was not prosecuted to final judgment until after tbis three-year period. It is urged that the action abated at the expiration of the three-year period. No reason is advanced for this result except the suggestion above mentioned, that the corporation then became extinct and all interest in the claim to its property was forfeited, and that creditors and owners of the capital stock were remediless in the matter; but, as we have pointed out, such is not the result; nor is there anything in the nature of the suit to prevent its continuance and an adjudication and enforcement of these rights. The action is founded in equity. All persons interested as owners of the property are before the court, and the proceeding is so framed that the interests of any party to the corporate property can be determined, finally adj Listed, and fully protected. Even should it be held that the bank became extinct as a corporation after the action was commenced and before judgment, this does not necessarily abate the action of the interested persons party thereto; though the corporation, as such, might drop out of the proceeding. Under these conditions the suit could be continued and prosecuted to judgment in the name and right of the parties interested in the corporate estate, which is in the custody of the court and held as a trust fund to be administered for their benefit. Harrigan v. Gilchrist, 121 Wis. 127, 99 N. W. 909; Bewick v. Alpena H. I. Co., supra; Franklin Bank v. Cooper, 36 Me. 179; Shayne v. Evening Post P. Co. 168 N. Y. 70, 61 N. E. 115; Gager v. Paul, supra; Milwaukee M. F. Ins. Co. v. Sentinel Co. 81 Wis. 207, 51 N. W. 440; Sleeper v. Goodwin, 67 Wis. 577, 31 N. W. 335; Bacon v. Robertson, 18 How. 480.

The trial court found that, at the time the bank ceased to do a going business under its charter, it “owned and was possessed of a good will, which was of the reasonable value at that time of sixteen thousand dollars,” and held that it had been wrongfully appropriated by William E. Lindemann, the surviving director of the bank, for the benefit of the new Bank of Viroqua, organized by himself and his children, and which conducted a banking business in the offices of, and in immediate succession to, the old bank. That a banking corporation may have a good will, which, when acquired, constitutes a species of property, is abundantly supported by authority. Bank of Tomah v. Warren, 94 Wis. 151, 68 N. W. 549; People ex rel. A. J. Johnson Co. v. Roberts, 159 N. Y. 70, 53 N. E. 685; Mitchell v. Read, 84 N. Y. 556; Washburn v. Nat. W. P. Co. 81 Fed. 17, 26 C. C. A. 312; Wilmer v. Thomas, 74 Md. 485, 22 Atl. 403. Good will is the result of the employment of capital in some established business. It augments its value and is an incident to the conduct of the enterprise. It exists at the place where the business is carried on, and gives value to the enterprise because of the benefits that are likely to come to a successor and which arise from being connected with its reputation. It is this which .gives to the opportunity of securing this connection to continue the public patronage in the same respect a commercial value. It is strenuously insisted that the old Bank of Viroqua could not convey good will, for want of power to transfer a place, a name, or tangible assets to which it could attach. It is true the bank might not be able to transfer particular business rooms or offices, but the good will as to the place is not confined to such limits; and it might well attach to this banking business, if continued at offices or rooms in the city of Viroqua other than those formerly occupied by it. It is said the name “Bank of Viroqua” could not have been transferred by it terbe exclusively used by a successor. If the general proposition that a defunct corporation whose affairs are being liquidated and closed up retains no right to the use of a corporate name ,be granted, yet such is not the situátion presented by the facts of this case. We have before us a corporation with an established business, which, under the statutes, was continued for three years from the time it ceased to conduct a going banking business, for tbe purpose and with power, by its directors and managers, to settle up and liquidate its affairs. Nothing would prevent suck officers from transferring to another banking corporation the right to use its name as its successor in business by purchase of its tangible assets and good will and the right to hold itself out to the world as successor to the old bank. The objection that such a course would necessarily include the selling of the liabilities of the old bank seems entirely unfounded, for it would have been entirely feasible to have paid up and settled all liabilities in connection -with the new enterprise with probable advantage and convenience to both. That such a course of business is practicable is abundantly shown. The facts of the case show that the Lindemanns organized a new bank under the old name, conducted its business in the offices where the affairs of the old were being liquidated and settled, and practically dealt with the affairs of the old bank as its successor, and thus acquired the benefits of the good will of the old bank. Under these circumstances we find the trial court’s conclusion to the effect that the old bank was possessed of a good will at the time Lindemann took possession of its assets is well supported by the evidence. As trustee of the bank’s property, with power to liquidate its affairs, it was Lindemann’s duty to dispose of the good will, with the tangible assets of the bank, in the most advantageous manner. He failed to do so, but appropriated it to the use of the new bank organized by himself and children. Bank of Tomah v. Warren, supra; Rowell v. Rowell, 122 Wis. 1, 99 N. W. 473; Slater v. Slater, 175 N. Y. 143, 67 N. E. 224; Mellersh v. Keen, 28 Beav. 453; Williams v. Wilson, 4 Sandf. Ch. 379. Under such circumstances the appropriation of the good will for the benefit of the new bank may be treated as a sale, and will be held valid or voidable at the option of the Rusks for whom he was fiduciary. Rowell v. Rowell, supra; Harrigan v. Gilchrist, 121 Wis. 127, 99 N. W. 909. Under the rule of these authorities, the beneficiaries may require the-new bank to account for the profits realized by it through the wrong of its organizers and owners in appropriating the asset of the good will of the old bank. The facts proven and found' by the court sustain the judgment of the trial court in fixing" the value of the good will and for the recovery of the profits-realized thereon as capital stock of the new bank.

The record shows that the personal representatives of Jeremiah M. Rusk, deceased, commenced an action against William E. Lindemannj and those associated with him in organizing the new bank, shortly after the old bank ceased to do-a banking business and the new bank had commenced business, in which they charge the facts showing the organization of the old bank, its course and amount of business, the termi--nation of its banking business under the charter provisions,, the organization of the new bank by William E. Lindemann- and his children, the beginning- of their business on the day succeeding the cessation of the business of the old bank, using the same name, conducting its business in the same place, using the furniture and books of the old, and so conducting its business as to appropriate the good will of the old bank, and that Lindemann, as surviving director and administrator-of the affairs of the old bank, so manipulated its affairs as to endanger the security of the property of the old and opérate-lo the advantage of the new bank, in violation- of his duty as such surviving director, and prayed that he and his associates be restrained from using the name “Bank of Viroqua” as file-name of the new bank, and from handling, discharging, collecting, or intermingling the affairs or business of the old bank with that of the new one, and that a Receiver be appointed to take charge and possession of the affairs and assets of the old bank as well as the banking offices formerly-occupied by it, and then being used by the new bank for the-■purpose of settling and winding up its affairs. The defendants demurred to this complaint upon the grounds: (1) wan*" ■of capacity to sue; (2) failure to make both tbe new and tbe old bank parties; (3) improperly uniting several causes of action; and (4) that tbe facts stated did not constitute a cause of action. Tbe demurrer was overruled as to tbe first ground and sustained as to tbe second, third, and fourth grounds. 'The complaint was not.amended, and judgment of dismissal and for costs was entered. Plaintiffs in their complaint then ■demanded relief as above indicated, upon tbe facts alleged. No claim was made for, nor did tbe judgment demanded include, damages for conversion of assets or tbe misappropriation of tbe good will of tbe bank. Tbe scope and purpose of tbe cause of action alleged were to prevent control of tbe old bank’s assets and property by William E. Lindemann as surviving director, and to place them in tbe court’s custody, for tbe appointment of a receiver, and to prevent Lindemann and bis associates in tbe new bank from using the name “Bank ■of Viro qua”'and tbe banking offices of tbe old bank, its books and furniture, and from conducting its business in such manner as to interfere with and intermingle tbe customers’ accounts of tbe two banks. Tbe facts alleged were made tbe basis for equitable relief to restrain Lindemann from administering tbe affairs of tbe old bank as its surviving director, and to place them under tbe control of the court, through a receiver, and to prevent any intermingling of its property •and affairs with that of tbe new organization. Tbe cause of ■action in this suit seeks to accomplish an entirely different object. It charges misconduct by Lindemann, as trustee, in wrongfully converting tbe property and tbe good will of tbe old bank, and seeks to compel an accounting for tbe damages clearly occasioned to tbe equitable owners of tbe trust fund. 'While allegations of tbe diversion of tbe good will and tbe use of tbe bank’s name are contained in both complaints, it is obvious that tbe causes of action alleged in tbe two suits are different, although arising out of tbe same subject matter, :and that tbe relief sought to be obtained in tbe one is clearly different from, and not included in, tbe other. It is urged tbat under tbe circumstances tbe judgment in the former action is res adjudicata as to tbe matters involved in tbe latter, on tbe ground tbat we bave identity of subject matter and identity of parties in tbe two actions. Tbis contention overlooks one of tbe essential elements wbicb, to fumisb a basis for tbe rule of res adjudicata, must be common to both actions, namely, tbat there must be not only identity of parties and of subject matter, but also an identity of causes of action. As held by tbis court:

“Tbe rule tbat a judgment in bar, or as evidence in es-toppel, is binding not only as to every question actually presented and considered and upon wbicb tbe court rested its decision, but as to every point tbat might bave been presented and decided in tbe case, ... is strictly accurate when applied to tbe cause of action in which tbe adjudication occurs, whether in tbe same or in some other case, but not when the-same question is subsequently raised between the same parties on a different claim or cause of action. In tbe latter situation, tbe former judgment is binding only as to tbe matters actually presented and litigated in tbe former case.” Wentworth v. Racine Co. 99 Wis. 26, 14 N. W. 551; Grunert v. Spalding, 104 Wis. 193, 80 N. W. 589; Hart v. Moulton, 104 Wis. 349, 80 N. W. 599; Case v. Hoffman, 100 Wis. 314, 72 N. W. 390, 74 N. W. 220, 75 N. W. 945; Rowell v. Smith, 123 Wis. 510, 102 N. W. 1; Ellis v. N. P. R. Co. 80 Wis. 459, 50 N. W. 397; Russell v. Place, 94 U. S. 606; Lewis v. Ocean N. & P. Co. 125 N. Y. 341, 26 N. E. 301; Waterhouse v. Levine, 182 Mass. 407, 65 N. E. 822.

Tbe records show tbat tbe causes of action in these cases are not identical, and it does not appear that tbe precise questions arising in tbis action were presented and decided in the-former; hence tbe rule of res adjudicata does not apply.

Some exceptions are presented on tbe Lindemann appeal as to tbe inclusion of some facts in the hypothetical questions submitted to tbe experts on tbe value of tbe good will wbicb are irrelevant to tbe matters alleged and not competent proof' under tbe complaint. We bave examined tbe objection, but find that tbe questions contain nothing that can be deemed ■prejudicially erroneous. We are of opinion that tbe court’s finding fixing tbe value of tbe good will is abundantly supported by material and competent evidence.

Tbe same appellants presented numerous requests for specific findings of facts, wbicb were refused by tbe court. Tbis action of tbe court is justified, since all material facts involved in tbe case are sufficiently covered by its findings.

It was found as fact tbat William F. Lindemann on January 4, 1901, borrowed $18,000 from tbe old Bant of Viro-■qua and gave bis promissory notes therefor, with interest, and tbat be pledged collateral to secure payment, and tbat be applied tbe money so obtained in payment of bis stock in the new bank. These notes, with interest, were paid by him during bis lifetime; and these sums went into tbe bands of a receiver and were by him, under order of tbe court, paid to tbe owners of tbe fund. It is urged tbat tbe court erred in denying tbe demand of tbe Bush heirs, declaring tbat tbe sum so borrowed be treated in equity as a trust fund in bis bands, and tbat its investment in the new bank be held as one made for tbe benefit of those interested in tbe fund of tbe old bank, and tbat "tbe stock purchased with it and tbe accumulated profits of tbe new bank be apportioned between tbe Bushs and tbe Lin-■demanns in proportion to their original interests in tbis amount. Tbe argument proceeds upon tbe basis tbat such an appropriation was an appropriation by a trustee having no interest in tbe trust- fund in bis bands. If such were tbe fact before us, tbe court’s decision would be surrounded with difficulties. It appears, however, tbat be obtained tbe money as a loan from tbe old bank, of wbicb be was a half owner, tbat bis interest in its assets exceeded tbe amount so. obtained by Tn'm, and tbat be dealt with tbe fund in every respect as a borrower from tbe bank. These circumstances tend to justify treating tbe transaction as a loan. Nor is it clear, under the evidence, but that tbe interest paid by bim for tbe use of tbe money was an equivalent of tbe profits for tbe period be ■sq retained it, even if it were treated as an investment in tbe new bant by tbe original owners. We are of tbe opinion that tbe court committed no error in its adjudication on tbis question.

An exception is urged to tbe amount of tbe allowance compensating William E. Lindemann for the services rendered by bim in winding up the bank’s affairs. It appears that be rendered services incident to settling tbe greater portion of its affairs, .and that tbe rate of compensation was less tban the court allowed tbe receiver for like services after Linde-mamn’s decease. It is shown that be received a salary as officer before tbe bank ceased doing a general banking business, and tbat tbe court allowed bim compensation for bis services at tbe same rate be bad been paid by salary. We -find no injustice or want of validity in tbis allowance.

Tbe foregoing covers all tbe questions presented for review. We find nothing in tbe record demanding a reversal or modification of tbe judgment.

By the Court. — Judgment affirmed on both appeals.