Atterberry v. McDuffee

Philips, P. J. No question can properly arise on this record as to any misappropriation or application of the money in controversy by the executor. He never used it in his own business, nor mingled it with his individual money or estate. It was his duty to have the money in position to meet any debts, or the order of the probate court for distribution or other purpose. His evidence, and that of the probate judge, shows that he kept himself under the direction and advice of the probate judge. His sole accountability, therefore, turns upon the question of his vigilance and care in the custody of the fund. In other words, the issue is, was the executor guilty of such negligence in the keeping and management of the money as, in the sound discretion of a court of equity, ought to render him liable for its loss ? Our own courts have established the rule as to the measure of care to be exercised by such trustees. It is stated thus, in State ex rel. v. Meagher, 44 Mo. 356: Executors and administrators stand in the position of trustees ; and are liable only for want of due care and skill; and the measure of care and skill required [612] of them is the same as that demanded of bailees for hire, viz., that which prudent men exercise in the direction of their affairs.' In the course of this opinion the court say: “The care must be graduated ■according to the character of the property, its value, and the convenience of its being made secure, the facility of its being stolen, and the temptations thereto. ’ ’ So in Fudge v. Durn, 51 Mo. 264, the court say the executor is not in any sense an insurer of the property ; but- a mere trustee acting for the benefit of others, quoting the language of Chancellor Kent in Thompson v. Brown, 4 John. Ch. Rep. 619: “This court has always treated trustees acting in good faith with great tenderness. ” And again from Lord Hardwick in Knight v. Earl of Plymouth, 3 Atk. 480: “If there was no malafides, nothing wilful in the conduct of the trustee, the court will always favor him. For as a trust is an office necessary in the concerns between man and man, and which, if faithfully discharged, is attended with no small degree of anxiety and trouble, it is an act of kindness in any one to accept of it. To add hazard or risk to that trouble, and to subject a trustee to losses which he could not foresee, would be a manifest hardship ; and would deter every one from accepting so necessary an office.” It would be unreasonable to say that the executor in respect of the money in question did not exercise the degree of care and prudence which the most cautious of men exercise in the management of their own affairs under like circumstances. He kept this money at the safest place recognized in the community. Had he retained the same at his private house, and the money been stolen, in view of his evidence, he would have been guilty of culpable negligence for not putting it in bank. The only answer made to this is, that by putting the money in bank to his individual credit, he was guilty of an act of conversion ; and the money thereafter remained in the bank at his risk. This we might admit would be a correct exposition of the law, did it appear that the [613] executor intentionally so placed the money in bank as his. and the bank took and held it in ignorance of its trust character and the intent, one way or the other, of the party so placing it. Coleman v. Lipscomb, 18 Mo. App. 444. The evidence shows there was no intention on the part of the executor to have this money placed to his individual credit. He did not so direct it, and did not know at the time it was so done. Nor can it be .said he was guilty, under the circumstances, of any culpable negligence in not examining the certificate at the time. He had iio individual account at the bank. The cashier knew the money belonged to the Farmer «state, and it was entirely his fault that it was not properly accredited. In such case the bank could not avoid accounting for the money to the estate on demand of the legaf representative thereof. Ihl v. Bank, 26 Mo. App. 128; Utler v. Tolfree, 77 Mo. 307; Morrill v. Raymond, 28 Kan. 415. So it is held that a bona-fide deposit by a guardian of his ward’s money in his own name, it being clearly shown that it was his ward ’ s money, will protect him against loss, which occurs, not on account of the form of the deposit, but by the destruction of the bank. Parsley, Adm’r, v. Martin, 77 Va. 376. The loss in question in no wise resulted from the manner of the deposit, but would have occurred had the deposit been made in the name of the executor as such. The equity to the credit in such case must be precisely the same. Had there been any mingling of the trust fund with the individual property of McDuffee, the case would have been different. 2 Pom. Eq., sec. 1076. ■ As to the $123.80 item the principles of law stated are equally applicable. Guthrie knew the money belonged to the Farmer estate, and so did the bank. The executor never authorized or directed the deposit in Guthrie’s name, or his individual name. When Guthrie went to make the deposit, or gave the check for the $323.80 in favor of McDuffee the bank officer stated that McDuffee had no individual account there. And, [614] as a matter of‘fact, he did not enter the credit until near the date of the failure of this bank. He informed Melone when he drew the check for the two hundred dollars that he wanted part of the Parmer money. The bank officer must have, for purposes of his own, been using this check. We are unable to perceive how it can be held that any culpable negligence is imputable to the executor in this transaction. He had every reason to believe, justas Guthrie did, that the check had been properly passed to his credit. Melone had the confidence of the community ; and the depositors had well-founded belief in the safety of their deposits and the perfect integrity of' the bank officers. The loss would have occurred in the same way had the check been promptly and properly placed to the credit* of McDuffee as executor. In such case there is nothing for a court of equity, or one exercising equity jurisdiction, to hang a decree upon predicated of bad faith, laches, or negli'gent management. It follows that the judgment of the circuit court ih affirmed. All concur.