173 A. 288 | Pa. | 1934
The secretary of banking, September 23, 1931, took possession of Franklin Savings Trust Company under the Banking Act of June 15, 1923, P. L. 8091; see section 21 et seq. At that time, the City of Pittsburgh, appellant, had in the bank two deposits made by the same city official, one, in his capacity as city treasurer, the other, in his capacity as collector of delinquent taxes. In 1933, the secretary filed his first and partial account showing, among other things, that two dividends had been paid to depositors, one of 10% July 20, 1932, and the other of 8% January 11, 1933 — a total of $22,500 on city treasurer's account and of $29,735.06 on the delinquent tax collector's account. The record brought up does not show the amount for further distribution, though it is stated in appellee's brief that it is "about forty-five to fifty thousand dollars, which would normally pay the depositors about 2%."
On July 17, 1933, after the account was filed, appellant city filed exceptions to the account,2 alleging that *127 the deposits were unlawful, the bank not having qualified as a city depository as, it is alleged, was required by an ordinance. In consequence of this omission, the city averred, "the said moneys became a trust fund to be held by the said Franklin Savings Trust Company in trust for the City of Pittsburgh," entitling the city to payment in full, prior to payment to "general creditors or ordinary creditors of said Franklin Savings Trust Company." The exceptions were dismissed and this appeal followed.
The Commonwealth is entitled to priority of payment of bank deposits (South Phila. State Bank's Insolvency,
The appeal must fail for want of evidence in the record to enable the fund to be identified or traced. Appellant asks a preference over other depositors on the theory that it is the beneficiary of a constructive trust. But trust relationship, alone, does not give priority; that depends on identification of the property: Lifter v. Earle Co.,
The order is affirmed, costs to be paid out of the fund for distribution.