149 P. 713 | Mont. | 1915
delivered the opinion of the court.
This action was brought by the plaintiff, as assignee for value of a claim for the sum of $787.08 alleged to have become due to the National Bank of Montana, located and doing business at Helena, under the circumstances set out in the amended complaint, as follows: That defendant Anna E. Nett was the duly appointed, qualified and acting special administratrix of the estate of Edward J. Murphy, deceased; that on February 5, 1912, she had on general deposit in the bank to her credit as administratrix, subject to check, the sum of $8,369.75; that on that day one Raymond A. Weisner, claiming to have been appointed special administrator upon the estate of the deceased, made demand upon the bank that it pay over to him the sum so deposited; that the bank notified the defendant of the demand by Weisner; that defendant, objecting to the payment by the bank to Weisner for the reason that she had not been removed from her office, requested the bank to refuse the demand and to retain the deposit in her name until it could be ascertained who was entitled to it; that relying upon the request of defendant and the promise implied by it that defendant would indemnify it against all loss by reason of its retention of the deposit, the bank refused the demand of Weisner; that on February 7 Weisner brought an action against the bank to recover the amount of the deposit, with interest from the date
The question submitted is whether the ruling on the demurrer was correct. It will be observed that the theory upon which it is sought to fix liability upon the defendant is that, having requested the bank to retain the deposit until title to it could be determined, she thereby impliedly promised to indemnify it against any loss it might suffer by its compliance with her request.
Neither at the time Weisner made demand upon the hank nor at the time he brought his action was he entitled to the office of special administrator. Although it be conceded that upon the removal of the defendant on March 4, 1912, he became her successor and the deposit became subject to his order, at no time prior to that date was he other than a stranger to both the bank and the estate. According to the allegations of the complaint, which, for present purposes, must be accepted as true, the defendant was special administratrix. There cannot be two administrators upon an estate at the same time.
The administration is an entirety, and extends to the whole
The deposit was for the purpose of exchange (Rev. Codes,
We think the action of the lower court in sustaining the demurrer was correct. The judgment is therefore affirmed.
Affirmed.
Rehearing denied June 29, 1915.