8 P.2d 470 | Cal. | 1932
THE COURT.
This action was instituted by respondent as the public administrator of Mendocino County and as the administrator of the estate of one Mike Krnich to quiet title to and to recover possession of certain moneys admittedly on deposit with appellant to the credit of decedent at the time of his death. The trial court rendered judgment in favor of plaintiff, decreeing that the estate of Krnich was the owner of the money on deposit, and that the administrator was entitled to withdraw the same without producing the pass-book or without indemnifying the *74 bank. From said judgment the defendant prosecutes this appeal.
The action was submitted to the trial court on an agreed statement of facts. So far as pertinent here these facts disclose the following situation: That on August 21, 1926, the deceased opened a savings account with defendant bank, and received as evidence of his deposit a pass-book, and that from time to time he made deposits and withdrawals from this account, all of which were recorded in the pass-book; that on April 30, 1930, there was on deposit with defendant bank in the account the sum of $831.76; that at the time of making the initial deposit, and at all times since, the by-laws of the bank, to which deceased subscribed, have provided that the pass-book delivered to the depositor "shall be the voucher of the depositor"; that the bank may make payments to any person producing the pass-book; that no withdrawals shall be permitted unless the pass-book is produced, "provided, however, that if the depositor shall prove to the satisfaction of the officers of the bank that his passbook has been lost, stolen or destroyed, and shall furnish to the bank satisfactory indemnity against any claim which may at any time be made against the bank on account thereof, the officers of the bank may make payment to the depositor without the production of such book"; that "no assignment of any pass-book shall be valid or binding upon the bank until the bank shall have been notified thereof in writing . . . and notation of said assignment be made by the bank on the pass-book"; that when any deposit account shall be closed the pass-book shall be returned to the bank; that if the pass-book is lost or in any manner passes from the control of the depositor the bank should be at once notified of the fact in writing. The facts further disclose that the depositor died on April 30, 1930, and was then a resident of Mendocino County; that in due course plaintiff as public administrator of that county was duly and properly appointed administrator of the estate; that the administrator needs the moneys in the account for the purpose of defraying the costs of administration and paying funeral expenses; that the administrator has diligently and carefully searched for the pass-book, but has been unable to find the same; that neither the defendant nor the plaintiff has any knowledge as to whether an assignment *75 of the deposit was made by the depositor prior to his death; that the account is in the name of the deceased; that the bank has never been notified in writing or otherwise that in fact an assignment was made by the deceased; that the plaintiff has demanded, in proper form, that the total amount of the deposit with interest be paid to him; that said demand was countersigned by a judge of the superior court as provided by law; that the bank claims no interest in the deposit and is willing and has offered to pay the same to the administrator upon his production of the pass-book or upon the administrator indemnifying the bank against loss on account of said payment; that the administrator has not produced the book nor has he offered to so indemnify the bank.
[1] Preliminarily it should be stated that there is no doubt that in a proper case the public administrator has the power to withdraw deposits of the nature of the one herein involved when such sums are needed to defray the costs of administration, and when the order of withdrawal is countersigned by a judge of the superior court. A statutory provision confers that right on a public administrator. (Stats. 1911, p. 1007, sec. 4.) It is agreed that the instant case is a proper one for the withdrawal of the deposit if the administrator is entitled to withdraw the same without production of the pass-book or without offering to indemnify the bank for any loss it may incur in permitting such withdrawal.
[2] There is no dispute that the pass-book cannot be found, and that the deposit is now in the name of the deceased, and that the bank has never been notified of any assignment of the deposit. It is true that the depositor entered into a contract with the bank to indemnify the bank against any loss suffered by it in making payments to the depositor without production of the pass-book, but it is obvious that, reasonably interpreted, the indemnification agreement can only be applied to a situation where there is a possibility that the bank may suffer loss by reason of such payment. If the bank cannot possibly be injured by reason of such payment no indemnification can or should be required. (Dollar v. International Banking Corp.,
[4] In the first place it is clear that a bank deposit of the nature of the one here in dispute is a chose in action as defined by section
The judgment is affirmed. *79