Bond, J. The petition herein seeks to establish a trust against defendant as assignee of an insolvent bank for certain money alleged to have been deposited by plaintiff as guardian of two minors with said bank for collection. The answer admitted defendant to be the assignee of the creditors of the bank, and denied the other allegations of the petition.
The facts are that on the eleventh day of April, 1896, plaintiff deposited with defendant’s assignor a pension check for $1,084.53, payable to himself as guardian, receiving therefor a duplicate slip signed by the officers of the bank, showing the deposit of the pension check by plaintiff as guardian. The bank, however, at the same time made an entry on its books accrediting deposit to the plaintiff individually.
The bank collected said pension check and paid out $179.50 thereof 568 upon the checks drawn on it by plaintiff in his individual capacity. It is also sufficiently clear from the testimony that the managing officers of the bank were informed that the pension check represented the money of the two wards of plaintiff and was held by him as their guardian, and that it should be entered in the books in the name of their guardian.
The bank assigned its assets to the defendant on May 1, 1896, for the benefit of its creditors. There was a finding for defendant, from which this appeal is taken. l!ífab¡i1tyrflMsets for”rastedepbo“li The only question presented by the record is whether under the above facts the assets in the hands of the defendant can be charged with a trust for the unpaid portion of the sum collected by the bank on the pension check deposited with it.
Under the facts in this case, as we fihd them to be, the question must be answered in the affirmative. ■ The bank receiving the check for collection for plaintiff as guardian could not transfer to its assignee for creditors any title to the proceeds which it did not itself possess.
The bank could not have used such proceeds in the payment of its demands against the plaintiff in his individual capacity, as between him and the bank the relationship of trust was full. and complete, and the bank could not denude itself of this obligation by applying the fund to the payment of its claims against the depositor personally. It might have paid his cheeks to third parties out of the fund, but it was disabled from converting any part of the fund to the payment of his personal debt to it.
Ihl v. Bank, 26 Mo. App. 129. If the bank could not pay its own debt out of the fund in question, it necessarily results that it could not apply it to the payment of debts due from it to its general creditors, nor to the assignee representing them, for he simply succeeds to the rights of his 569 assignor, the bank.
Moreover the deposit in question was evidenced by a receipt showing its trust character, and we find the fact to be that the receipt was so written by the Bank’s president or cashier, and that they knew the particular cestuis que trust to whom it belonged and received it for collection for their benefit.
Under these circumstances there can be no doubt as to the right of plaintiff as the representative of the cestuis que trust to impress the assets of the bank, which were increased to that extent, with a trust for the payment of the unpaid amount of the collection made on the pension check. Nat’l Bank v. Sanford, 62 Mo. App. 394; In re Estate of Horner, 66 Mo. App. loc. cit. 536; Harrison v. Smith, 83 Mo. 210; Stoller v. Carter, 88 Mo. 514; Phillips v. Overfield, 100 Mo. loc. cit. 475.
The judgment herein will be reversed and the cause remanded, with directions to the trial court to enter a judgment for plaintiff for the balance of the collection of the pension check. Judge Blaxd concurs; Judge Biggs dissents and asks the case to be certified to the supreme court as opposed to the cases of Phillips v. Overfield, supra, and 74 Mo. loc. cit. 418; 67 Mo. 395, and 79 Mo. 252. It is so ordered.
Loading…