Opinion
8 Div. 627.
May 16, 1935. Rehearing Denied June 20, 1935.
Appeal from Circuit Court, Limestone County; Jas. E. Horton, Judge.
E. W. Godbey, of Decatur, for appellants.
The deposit in bank at the time of intestate's death vested immediately in his widow and minor children. The administrator's only concern was to pass it on to them. Snead v. Scott, 182 Ala. 97, 62 So. 36; German-American Bank v. Lewis, 9 Ala. App. 352, 63 So. 741; Blankenbeck v. Foster, 206 Ala. 85, 87, 89 So. 171; Jarrell v. Payne, 75 Ala. 582, 89 So. 171; Lanford v. Lee, 119 Ala. 248, 24 So. 578, 579, 72 Am. St. Rep. 914; Perrydore v. Hester, 215 Ala. 268, 269, 110 So. 403; Mixon v. Mixon, 203 N.C. 566, 166 S.E. 516, 518. Defendant's withholding of the deposit and placing it in the custody of the failing bank rendered him a tort-feasor. Officer v. Officer, 120 Iowa, 389, 94 N.W. 947, 98 Am. St. Rep. 375; McNabb v. Wixom, 7 Nev. 163, 171; Lehman v. Robertson, 84 Ala. 489, 491, 4 So. 728, 65 C. J. 701, 796; 11 Cyc. Law (2d Ed.) 948, 950; Loeb v. Richardson, 74 Ala. 311, 315; Lund v. St. Paul, etc., R. Co., 31 Wn. 286, 71 P. 1032, 61 L.R.A. 506, 96 Am. St. Rep. 906. Failure to earmark the money with Jolly's name when he redeposited it rendered defendant liable. Chancellor v. Chancellor, 177 Ala. 44, 58 So. 423, 424, 45 L.R.A. (N.S.) 1, Ann. Cas. 1915C, 47; O'Connor v. Decker, 95 Wis. 259, 70 N.W. 286, 287; Williams v. Williams, 55 Wis. 300, 12 N.W. 465, 13 N.W. 274, 42 Am. Rep. 710; Naltner v. Dolan, 108 Ind. 500, 8 N.E. 289, 58 Am. Rep. 65.
J. G. Rankin, of Athens, for appellees.
Report of appraisers setting apart exemptions to widow and minor children must lie over for 30 days for objections or exceptions. Code 1923, § 7933. A fiduciary acting in good faith making a temporary deposit of trust funds in a bank of good repute, the deposit showing the trust character of the funds, is not liable because of the subsequent failure of the bank and loss of funds caused by such failure. Gibbons v. Norton, 225 Ala. 650, 145 So. 131; Barnes v. Clark, 227 Ala. 651, 151 So. 586, 90 A.L.R. 637.
It is well settled by the decisions of this court that a guardian, trustee or administrator may make temporary deposits of trust funds in a responsible bank, acting in good faith and with discretion, and will not be held liable for such funds in event of a failure of said bank. Barnes v. Clark, 227 Ala. 651, 151 So. 586, 90 A.L.R. 637; Gibbons v. Norton, 225 Ala. 650, 145 So. 131.
Of course, to come within the protection of the above-stated rule, the trustee must not deposit the funds in his own name nor commingle the account with his own in the bank, for, if he does, his liability will become absolute, and he cannot escape liability by reason of good faith, prudence of judgment, or upon the fact that he may have disposed of his own funds in the same way. Chancellor v. Chancellor, 177 Ala. 44, 58 So. 423, 45 L.R.A. (N.S.) 1, Ann. Cas. 1915C, 47.
We think the evidence shows that the appellee deposited the fund in question in his representative rather than individual capacity; that he did so as administrator. True, the books of the bank show that the deposits were to him as administrator and did not specify or designate the estate to which the fund belonged, but it also appears that before the bank closed, the account was designated on the books as being the estate of "Will Jolly." It also appears that the only checks drawn against the fund were drawn by the appellee as administrator of "Will Jolly," and which were paid by the bank. In other words, we think the books of the bank were such as to enable the beneficiaries to establish their claim or ownership to the fund in case of the death of Richardson, the administrator, and that it did not belong to him individually.
We think that the evidence fails to charge the appellee with notice of the failing condition of the bank when the deposits were made.
True, practically all of the funds involved were from the federal government, a part paid to Jolly before his death, and the balance to this appellee just before the bank closed, but we do not think it was the duty of the appellee to have turned this fund over to the widow and minor children in advance of the orderly proceedings in the probate court; certainly not before the deferred payments had been collected from the government. True, these funds were exempt from the payment of the debts of the decedent, but the government required a legal administration on his estate, and it was not incumbent upon the administrator to pay over or disburse the fund in advance of an orderly administration which he was attempting to bring to a close when the bank failed.
The decree of the circuit court is affirmed.
Affirmed.
GARDNER, BOULDIN, and FOSTER, JJ., concur.