120 Iowa 389 | Iowa | 1903
The firm of Officer & Pusey was a partnership doing a general banking business in the city of Council Bluffs.. On September 17, 1900, it went into the
The first question of law to be determined on this state of facts is, was the deposit wrongful? If so, and
Rep. 3). Such act is in itself a conversion of the funds. Ivey v. Coleman, 42 Ala. 409.
Finding, then, that the executor was authorized to :n ike a deposit of the money belonging to the estate, the next question is the nature of the deposit. .Deposits are
We have found that the deposit in this case was authorized, and that it was general in character, and the question yet remains, may the executor or his cestui que trust
The case is easily distinguishable from cases where the deposit is wrongful, for there the relation of debtor and creditor does not exist; at any rate, the cestui que trust is not bound by such a deposit. It is also very different from those cases where a bank, with notice of the trust
In Cavin v. Gleason, 105 N. Y. 256 (11 N. E. Rep. 504), relied upon by appellant, a trustee who had wrongfully dissipated and lost a trust fund made an assignment for the benefit of creditors and the cestui que trust sought to have a preferential claim established out of the assets of the trustee. The claim was denied, because the cestui que trust could not show that the funds were included in the assets, either in the original or a traceable form. The court there said: “It is clear that a trust creditor is not entitled to a preference over general creditors of an insolvent merely on the'ground of the nature of his claim; that is, that he is a trust creditor, as distinguished from a general creditor. * * * The equitable doctrine, that as between creditors equality is equity, admits, so far as we know, of no exception founded on the greater supposed sacredness of one debt, or that it arose out of a violation of duty,, or that its loss involves greater apparent hardship in one case than another, unless it appears, in addition, that there is some specific, recognized equity, founded on the relation of the debt to the assigned property, which entitles the claimant, according to equitable principles, to preferential payment. If it appears that trust property specifically belonging to the trust is included in the assets, the court,
In the case of Jones v. Chesebrough, supra, it was assumed, without deciding the point, that money rightfully deposited might be followed into the hands of an assignee of an insolvent bank. But as the case turned on the claimant’s inability to trace his property, there was no necessity 'for deciding the other point, and that case should not be regarded as an authority in support of in-tervener’s claim.
None of the cases cited by appellant reach the exact point for decision here, and we have been unable, after a somewhat laborious search, to find any that does sustain his contention. On the other hand, there is abundant authority for the positions we have taken, which are to the effect that the deposit was rightful, was general in character, and that the executor, or the estate which he represents, is a creditor of the bank, having no peculiar equities over those of any other creditors, and consequently is not entitled to have his claim established as a preferential one.
The ruling of the district court was correct, and it is AFFIRMED.