The opinion of the court was delivered, July 3d 1866, by
Agnew, J.
— The administrator de bonis non is the proper party to recover the assets of the decedent’s estate in the hands of a former administrator or his representative, and to sue on promises made to him in his representative capacity: Act 24th February 1834, § 31. A payment to the administrator of a deceased administrator is invalid: Musser v. Eckhart, 7 Harris 201; Little v. Watton, 11 Harris 164. If the deposit in question in this case belonged to the estate of George Shearer, deceased, the plaintiff, as administrator de bonis non cum testamento annexo, was entitled to recover it. The simple question therefore was, whether the bank held money deposited by W. W. Wolf, the deceased executor of the will of George Shearer, belonging to his estate. The plaintiff gave evidence that Wolf, as executor of Shearer, had filed an inventory amounting to $509.50, including a certi*367ficate of deposit of Shearer with C. Weiser & Son of $385, and that David Small, the administrator of W. W. Wolf, had filed his account of Wolf’s administration of Shearer’s estate to the time of his death, charging him with the amount of this inventory, and also the interest on the deposit with Weiser & Son, amounting to $15.40i He then gave evidence that W. W. Wolf had received of W eiser & Son the amount of the certificate of deposit with them, $385, and $15.40 interest, on the 20th of April 1865, and that on the next day, April 21st, he deposited in the York Bank $415.40, and at the time of so doing got the clerk of the bank to note on' his bank, or pass-book, “ Shearer’s Est.” opposite the sum of $415.40. At this time Wolf was sheriff of York county, and kept an account in bank as sheriff, and so entitled. The clerk ■ entered this ■ deposit as cash in the books of the bank in Wolf’s account as sheriff. The account in. the pass-book was also so entitled. The clerk testified that he also made other memoranda in this pass-book at Wolf’s request, as a guide to him, as Wolf expressed it. The plaintiff offered a witness to prove that Wolf asked him to become his surety in a bond for the sale of the real estate of George Shearer, under an order of the Orphans’ Court, and at the same time pointed to the entry of $415.40, April 2lst 1865, in his bank-book, and said, “ Here is the money of George Shearer’s personal estate,” stating also he intended'to distribute it after the sale of the real estate. The court rejected this offer. On this evidence, the defendant, having given none, the court directed a verdict for the defendant. The question now is, therefore, whether the plaintiff had given and offered to give such evidence of ownership of the deposit by Shearer’s estate as ought to have been submitted to the jury. The court excluded the evidence offered, on the ground that it was incompetent to use Wolf’s declarations to charge the bank with a trust as to this fund without its privity. But the purpose of the evidence was not to charge the bank without its privity, but to prove the true ownership of the fund. The admissions of Wolf were undoubtedly evidence that the fund deposited did not belong to himself personally or officially, especially in corroboration of the entry in his pass-book caused by him to be made at the time of the deposit. Whether the bank would be chargeable with the deposit in favor of Shearer’s estate would depend on other circumstances. As the case stood upon the evidence, the money remained in the bank, and it was liable to pay it to the proper party to receive it. There was no evidence that the bank had paid it out to Wolf himself or to his successor in office, or had become fixed or liable for it to some'third party by attachment, or by any act founded upon the apparent state of the account on its books. This left the question to be decided on the evidence —to whom _the bank was liable to pay it. Primá facie, as the *368account stood in the hooks, the sheriff’s successor in office was the proper party to receive the fund: Allegheny Bank’s Appeal, 12 Wright 328. But as between the bank and the depositor, while the fund is still held by the bank, and it has not been misled by the apparent ownership indicated by the state of the account to pay it out, or to incur responsibility for it to others by its own act or by the act of the law, the ownership of the fund can be shown to be different from the apparent ownership imported by the entry in the book. Such, I take it, is clearly the principle to be extracted from the following cases, without stating them in detail. Frazier v. Erie Bank, 8 W. & S. 18; Harrisburg Bank v. Tyler, 3 W. & S. 373; U. S. Bank v. Macalester, 9 Barr 475; Bank of Northern Liberties v. Jones, 6 Wright 541. In the last case the industry and research of our Brother Read has brought together many of the authorities bearing on this point. The effect of them all is to show that the true ownership of the fund may be proved to be in another than the person in whose name the deposit is made, but whether the bank is chargeable to the true owner must depend upon the circumstances of the case. This qualification is well illustrated by the case of Frazier v. Erie Bank,, where the bank was held liable only for a part of the deposit, so much as remained on hand at the time of notice of the true ownership of the fund. In a question of actual ownership, there can be no difference whether Wolf made the deposit in his personal or his official account. It was not an appropriation of the fund in the sense of payment, or any other act which vested a right of property in the fund in some third party. The deposit to the credit of the official account as sheriff was simply prima; facie evidence that the money had come to his hands in some official transaction, but it imported ownership in no particular person. It was therefore as competent to rebut this prinffi facie effect by proof of actual ownership as if the deposit had been in Wolf’s personal account. It is not to be doubted that Wolf himself, who controlled the account, could have withdrawn the money from the official account, and carried it over to its true place in the settlement of Shearer’s estate.
It does not appear from the evidence that the bank required indemnity at the time the plaintiff presented his check and demanded the money. In such a case, where there may be conflicting demands, and the bank stands as a mere stakeholder, it would have a right -to demand indemnity against a call for payment by Wolf’s successor in office. But the court can yet compel the plaintiff to tender a bond with sufficient surety before a verdict is suffered to pass in his favor. The judgment, however, must be reversed to enable the parties to have a fair trial of the questions involved.
Judgment reversed, and a venire facias de novo awarded.