In Re the Liquidation of Home Savings Bank

Clarkson, J. Petitioner, appellant, contends that it is agreed that appellant paid the amount of the deposit and took an assignment and subrogation receipt. If the court decides that the deposit was money of the United States and was entitled to priority as such within the contemplation of section 3466, Rev. Stat. of U. S., the appellant will be subrogated to all priority rights of the United States. Appellee concedes this. The respondent, appellee, contends that having elected to file its assignment and subrogation receipt without claiming a preference, petitioner is now estopped from seeking a preference. The Home Savings Bank of Wilmington, N. C., was guardian of the minors concerned in this controversy, and gave bond in the U. S. Fidelity and Guaranty Company, as surety for the faithful performance of its trust. The bank intermingled the guardian money with its other money in its vaults. The bank is insolvent. It is settled in this jurisdiction that the U. S. Fidelity and Guaranty Company is liable on its bond. Bank v. Corporation Commission, 201 N. C., 381. *459 It is contended by petitioner, appellant, U. S. Fidelity and Guaranty Company, that the money the bank received, it knew was the proceeds of War Eisk Insurance paid by the U. S. Veterans’ Bureau and that all funds involved in this suit were derived from payments made by the United States Veterans’ Bureau for and on behalf of said beneficiaries, under an insurance policy issued upon the life of Bennie Clay, a soldier in the United States Army. That the money on deposit in the Home Savings Bank of Wilmington, N. 0., was put there by said Savings Bank as guardian was money of the United States and entitled to priority as such within the contemplation of section 3466 Eevised Statutes of the United States (31 U. S. C. A., sec. 191) and other U. S. Statutes. We cannot so hold. The matter was decided in the U. S. Supreme Court to the contrary, in a decision for the Court written by Mr. Justice Butler, 13 March, 1933. “Petitioner was a United States soldier in the World War and while in the service suffered permanent mental incompetency. He became entitled to receive from the United States War Eisk Insurance and disability compensation. 10 September, 1919, the county court of Breathitt County, Kentucky, appointed for him the guardian above named who qualified and has ever since acted as such. The United States paid to the guardian the installments due his ward. The guardian deposited them in the Hargis Bank and Trust Company. It became insolvent and 5 February, 1930, conformably to the laws of the State, all its assets were taken over by respondent acting as special deputy banking commissioner and liquidating agent. At that time the guardian had on deposit $6,070.80 derived from such payments. The assets of the bank were not sufficient to pay more than one-half the total owing to depositors. Claiming priority under K. S., sec. 3466, the guardian demanded payment of his deposit in full. Eespondent held that petitioner was only entitled to share ratably with other creditors and refused to pay. Petitioner brought this suit in the circuit court of Breathitt County to enforce the asserted priority. That court gave him judgment as prayed. The court of appeals reversed on the ground that the bank was not indebted to the United States on account of the deposit by the guardian. 244 Ky., 68. The question has not been considered here and, decisions upon it in the state courts being in conflict, we granted a writ of certiorari. 287 U. S., . Petitioner relies upon the clause of section 3466 declaring that whenever any person indebted to the United States is insolvent the debts due to the United States shall first be satisfied. He asserts that, under acts of Congress later to be considered, the War Eisk Insurance and disability compensation paid to the guardian of an incompetent veteran remains the money of the United States so long as it is subject to his control and suggests that the guardian is a mere instrumentality of the United States for the disbursement of such *460 money for the benefit of the veteran. And he maintained that the deposit here involved is money of the United States and that the bank is indebted to it therefor. . . . The guardian, appointed by the county court, was by the laws of the state given the custody and control of the personal estate of his ward and was authorized to collect and receive the money in question. Ky. Stat., sec. 2030. And unquestionably payment to the guardian vested title in the ward and operated to discharge the obligation of the United States in respect to such installments. . . . He was not an agent or instrumentality of the United States. (Citing authorities.) It results that the deposit in question does not belong to the United States and, as indebtedness to it is essential to priority, the guardian’s claim under that section is without merit.” Our statute C. S., 2169, is similar to the Kentucky statute above referred to. For the reasons given, the judgment below is Affirmed.