Bank Of Statesville v. Waddell

• Decision Date: 14 May 1888
• Citation: 6 S.E. 414,100 N.C. 338
• Court: North Carolina Supreme Court
• Parties: Bank of Statesville v. Waddell.

6 S.E. 414

(100 N.C. 338)

Bank of Statesville

v.Waddell.

Supreme Court of North Carolina.

May 14, 1888.

Banks and Banking—Authority from Trustee to Beneficiary to Draw on Fund —Rights of Bank.

Where an executor deposited in a bank funds belonging to the deceased's estate, and authorized the beneficiary under the will to draw on such funds, and the latter continued to draw on them after the death of the executor, a receiver of the bank cannot recover from such beneficiary, for the benefit of the bank's creditors, the funds drawn after the death of the executor.

Appeal from superior court, Iredell county; Clark, Judge.

Action by Bank of Statesville against Emma Waddell, to recover money drawn from the bank by defendant. Judgment for plaintiff, and defendant appeals.

M. L. McCorkle and if. F. Long, for appellant.

D. M. Furches, for appellee.

Smith, C. J. This action, at the instance of the receiver of the Bank of Statesville, whose effects are in course of distribution, in a creditors' suit, was brought before a justice of the peace, and, from his judgment in favor of the plaintiff, carried by the defendant's appeal to the superior court of Iredell county. It is prosecuted to recover the sum of $150 alleged to have been unlawfully drawn by the defendant from the moneys on deposit in the bank, and appropriated to her own use. The defendant denies her responsibility in the premises. At February term, 1887, a reference was made under the Code to two commissioners, named, who were directed "to decide and determine all questions of law and fact and report to the next term." The report was made at August term, 1887, with the following findings of fact and law:

"To the Judge of said Court: The undersigned, referees in said case, beg leave to report that they find, as facts in said case, that R. F. Simonton, at the time of his death, which occurred in February, 1876, and for some considerable time previous thereto, was and had been executor of the last will and testament of David Waddell, deceased, and trustee of the funds arising under said will for the benefit of the defendant, which amounted to more than the sums of money hereinafter mentioned as drawn by the defendant, and that the said R. F. Simonton was during all the said time, and up to his death, cashier of the Bank of Statesville. (2) They further find as facts that, some time previous to the death of the said Simonton, he had entered upon the books of the bank a credit to himself, as executor of the said David Waddell, of the sum of fourteen hundred and sixty-six dollars and sixty-five cents, which credit stood on the books of the bank undischarged and unreduced at the time of the death of the said Simonton, and at the time of the drafts hereinafter mentioned as made by the defendant on the said bank. (3) Theyfind as facts that said Simonton, previous to his death, had given to the defendant permission to draw at her pleasure upon the bank, and upon the said credit of fourteen hundred and sixty-six dollars and sixty-five cents, and that defendant had repeatedly in his life-time drawn checks of various sums upon said bank under said permission, which had been honored and paid by said Simonton as cashier, and that said permission to draw was unrevoked at the time of the death of said Simonton. (4) They further find as facts that, after the death of said Simonton, the defendant, relying on said permission to draw, and acting thereon, on the 3d day of March, 1876, drew a check on said bank for the sum of $100, and on the 27th day of April, 1876, drew another check for $50 on said bank, both of which said checks, on the days on which they were respectively drawn, were honored and paid by the new cashier of said bank, C. A. Carlton, or by his assistant cashier, W. K. Howell. (5) They further find as facts that, when defendant drew the said checks, respectively, she intended to draw them upon the said fund standing on the books of said bank to the credit of the estate of David Waddell, and under the permission given her to draw by said Simonton in his life-time; and that there was due her from R. F. Simonton, as trustee aforesaid, at that time, more than the amount of both said clecks; and that at the time the said checks were paid by said Carlton, cashier, or by W. K. Howell, assistant cashier, it was the intention of the said Carlton or Howell, whichever made the payments, to charge the amount of said payments against the said credit of $1,466.65 standing on the books of the bank to the estate of David Waddell, which, however, was never done, and the...