243 P. 569 | Mont. | 1926
The theory of the appellant's case is that appellant had no authority to agree to a time deposit of the funds of his trust, and that the respondent bank was charged with notice of this limitation upon appellant's authority. A loan of the trust funds by the appellant would have been a violation of the trust. Either it must be presumed that the parties intended to do what was lawful, and the deposit made by the appellant was a special deposit, or if it was otherwise, the respondent bank participated in the wrong and it and its receiver should be held as involuntary trustees.
We will concede that a guardian, or other trustee, may lawfully deposit the funds of his trust, in a bank of good standing, on open account, for a limited time, without becoming individually liable for the loss of the funds, but such deposit must be temporary only, pending investment or other lawful disposition thereof, and any deposit for a fixed period of time, upon a certificate of time deposit, amounts to a loan without security, which is prohibited by the general law applicable to trust funds and trusts. (Corcoran v. Kostremetinoff, 164 Fed. 685, 21 L.R.A. (n.s.) 399, 91 C.C.A. 619, and cases cited.)
If a trust fund has been commingled with private funds, and the identical money cannot be identified and segregated, the mass will be impressed with the trust to the amount of such trust fund, and if, after the funds are commingled, there be withdrawals from time to time, it will be presumed that the moneys so drawn were from the trustee's own portion of the fund, rather than from the moneys held by him in trust. (HawaiianPineapple Co. v. Browne,
Where trust funds are deposited in violation of law in a bank which has knowledge of the facts, the title does not pass, and a trust results which, in case of insolvency, may be enforceable against the receiver. (Phillips v. Yates Cent. Nat. Bank,
A deposit made by a trustee, executor, administrator, assignee, agent, public officer who is serving as a fiduciary are simply general deposits and if the bank fails to pay them, the fiduciary has no peculiar claims or rights over other depositors. (5 Cyc. 514; 7 Cor. Jur. 633; 3 R.C.L. 518; Murphy v. Nett,
The fact the deposits were made in the savings department of the bank would not change the deposits from general deposits to special deposits. (Colorado Savings Bank v. Evans,
As a rule, deposits are general deposits, unless: (1) The money or thing is deposited with the understanding that the *177
identical money or thing is to be returned to the depositor; (2) The money or thing is to be used for a specially designated purpose; or (3) The deposit is unlawful or wrongful. (Allibone
v. Ames,
A trustee or fiduciary may deposit the funds in a bank, if it is prudent to do so, in the absence of statute. (Officer v.Officer,
On June 23, 1917, plaintiff opened a "savings account" with the defendant bank, with the privilege of checking against it. No certificate of deposit was issued to him, and the account differed from the usual checking account only in that the bank agreed to pay interest on balances, and carried the account under the title "William Pethybridge, *178 Guardian of Ted Champion." The money deposited was commingled with other funds of the bank. Thereafter the account was from time to time increased or diminished by deposits and withdrawals, until, in the latter part of the year 1921, the bank became insolvent and closed its doors, at which time plaintiff's balance amounted to $626.66.
In January, 1922, the bank reorganized by securing a creditors' agreement, which was signed by this plaintiff, and under the terms of which the plaintiff agreed to accept a certificate of deposit for the amount of his balance, payable in one year, with the privilege, at the option of the board of directors of the bank, of renewing the same for a second year. Such a certificate was thereafter issued by the bank, but was never delivered, as plaintiff never surrendered his original deposit book or evidence of indebtedness. Plaintiff signed the "creditors' agreement" without first obtaining authority of the court having control over the guardianship matter.
The reorganization of the bank was unsuccessful, and, on June 23, 1923, it again closed its doors, and defendant Bodine was duly appointed receiver. The only cash coming into the hands of the receiver was the sum of $1,752.51.
Plaintiff makes thirty assignments of error, based upon the rejection and adoption of the several findings of the referee, upon the conclusions of law drawn therefrom and upon the entry of judgment in favor of defendant and against plaintiff, which it is not necessary to set forth in this opinion, as they raise but the question of the nature of the deposit and the right of the plaintiff to preference. His contentions are:
(1) That, as plaintiff was a guardian dealing with his ward's money, which fact was known to the bank, the deposit was special and not general.
(2) That, as the deposit was by agreement to draw interest, it constituted a special deposit. *179
(3) That the deposit on time, in 1923, under the creditors' agreement, was a loan to the bank, without security, of trust funds, and without authority of court, of which facts the bank was chargeable with notice, and therefore that the guardian acted illegally with the connivance of the bank, and under such circumstances the bank is an involuntary trustee of the trust funds.
1. The trust relation, which will impress upon a deposit the[1, 2] character of a special deposit, is not the relation existing between the depositor of a trust fund and his cestuique trust, but that existing between the bank and the depositor. There are but two kinds of deposits — those where the bank becomes a trustee for the depositor, by special agreement or through circumstances sufficient to create a trust, and general deposits, where the bank merely becomes a debtor of the depositor, and, in the absence of such contract or circumstances, a deposit will be deemed a general deposit. (Carlson v. Kies,
The position of guardian is one of trust and not of agency.[3] (12 R.C.L. 1123.) "The relation of a guardian and ward is confidential, and is subject to the provisions of this code relative to trusts" (sec. 5882, Rev. Codes 1921), and the funds coming into the hands of the guardian are therefore, as between the guardian and the ward, trust funds which the guardian is by law required to "keep safely" (sec. 5881). There is no provision in our Code for the deposit of funds coming into the hands of the guardian, but the guardian is chargeable with the care and maintenance of his ward, and the payment of just debts contracted, out of the ward's personal estate and the income from real property, if sufficient (secs. 10414 and 10417, Rev. Codes 1921), and for this purpose it is necessary to retain under the control of the guardian *180
a sufficient sum to discharge these obligations as they arise, and common custom and usage, and the exercise of that degree of care required in the handling of trust funds, would dictate that money kept on hand for this purpose should be deposited in a reliable bank, and, where a trustee has exercised due care in the selection of the depository, it cannot be said that he has either violated the law or his trust. Thus, in the Matter of the Estateof William Law, a Minor,
In a note to the above case (14 L.R.A. 103) it is stated that "some right to deposit trust funds in bank with the accompanying freedom from liability for its loss is universally recognized." Among the cases cited in support of the above statement is that of Churchill v. Hobson, 1 P. Wms. 243, holding that, if the deposit is made from necessity or in conformity to the common usage of mankind, the trustee will not be liable for the loss upon the failure of the bank. This rule is recognized in the case of City of Livingston v. Wood,
From the amount involved here, coupled with the fact that withdrawals were made from time to time, it is apparent that these funds were not such as should have been invested, but were merely necessary funds for the care and maintenance of the ward, and, as to such, the guardian was acting in the performance of his duty in depositing them. There is no contention that at the time of the deposit the *181 bank was not a solvent and reputable institution, or that knowledge was brought home, in any manner, to the guardian of the impending failure of the bank.
2. In order, however, to escape personal liability, the[4] trustee must not deposit the funds in his own name but in the name of his cestui que trust, or by so distinguishing it on the books of the bank as to indicate that the funds are those of the latter and not his own. (Re Stafford, 11 Barb. (N.Y.) 353;Williams v. Williams,
3. Where the foregoing conditions are complied with, the mere[5] fact that the funds deposited were trust funds does not constitute a special deposit; the deposit is general, and the relation of debtor and creditor exists between the trustee and the bank (Murphy v. Nett,
4. Nor does the fact that the deposit by agreement draws[6] interest change its nature. (3 R.C.L. 519.) The situation here is similar to that of a deposit of county funds, *182
under our Depository Act (Laws 1913, Chap. 88), wherein it is provided that the funds shall draw interest but nevertheless be subject to withdrawal at any time. Such deposit is held to be a general and not a special deposit. (State ex rel. SchoolDistrict v. McGraw,
5. The final contention of plaintiff is that, by entering into[7, 8] the "creditors' agreement" without obtaining an order of court, the guardian violated his trust, and that he did so with the co-operation of the bank, which was chargeable with notice of his powers in this regard, and therefore an involuntary trust must be declared.
It is true that one to whom property is transferred in violation of a trust holds the same as an involuntary trustee under such trust, unless he purchased it in good faith and for a valuable consideration (sec. 7900, Rev. Codes 1921), and this principle is applied specifically where a deposit of trust funds is wrongfully and unlawfully made, with the active participation of the bank, in Yellowstone County v. First Trust SavingsBank,
Had the agreement been that the guardian would deposit a sum of money in his hands as guardian, on time deposit for one year, in aid of the reorganization of the bank, an entirely different question would be presented, but where no actual funds were, at that time, deposited, and the funds in the bank could not have been withdrawn for redeposit, admitting that plaintiff had no authority to enter into the creditors' agreement without first obtaining an order of court, and that one dealing with such a trustee must take notice of the court's authority to control such dealings as are within its jurisdiction, and, if the trustee's acts are not authorized, he must be prepared to immediately place the estate in status quo. (In re Connolly's Estate,
Before entering into the creditors' agreement, the plaintiff was a general creditor of the insolvent bank, entitled to a prorata share of the assets thereof. It does not appear from the record that those assets differed materially after the second closing of the bank from what they were at the time the bank first closed. Certainly, by his unauthorized act, plaintiff could not acquire, as against other creditors of the bank, any greater advantage than he would have had but for such act. To now advance him to the position of the holder of a preferred claim would be neither equitable nor just.
By its decree declaring plaintiff a general creditor of the bank, entitled to a pro rata share of its assets, the court placed the estate in status quo, and, as between the plaintiff and defendants, nothing further could be done.
The judgment is affirmed.
Affirmed.
MR. CHIEF JUSTICE CALLAWAY and ASSOCIATE JUSTICES HOLLOWAY, GALEN and STARK concur. *184