State, ex rel. Spillman v. First State Bank of Pawnee City
| Decision Date | 10 July 1931 |
| Docket Number | 27557 |
| Parties | STATE, EX REL. O. S. SPILLMAN, ATTORNEY GENERAL, v. FIRST STATE BANK OF PAWNEE CITY, APPELLEE: D. W. OSBORN, GUARDIAN, APPELLANT |
| Court | Nebraska Supreme Court |
APPEAL from the district court for Pawnee county: JOHN B. RAPER JUDGE. Reversed, with directions.
REVERSED.
Syllabus by the Court.
Where war risk insurance is paid by the United States to the guardian of an incompetent, the money belongs to the United States, and is subject to its control until it reaches the beneficiary designated according to law. In such a case the guardian is the agent for the government and his authority over the fund is limited and controlled by federal statutes alone.
Appeal from District Court, Pawnee County; Raper, Judge.
Action by the State, on the relation of O. S. Spillman, Attorney General, against the First State Bank of Pawnee City, in which D. W. Osborn, guardian of Frank M. Tannyhill, an incompetent person, filed a claim in intervention. From an adverse judgment, claimant appeals.
Reversed and remanded, with directions.
See also, 236 N.W. 157.
Dort & Witte and F. H. Wagener, for appellant.
C. M. Skiles and I. D. Beynon, contra.
Heard before GOSS, C. J., ROSE, DEAN, GOOD, EBERLY, DAY AND PAINE, JJ.
This is an appeal from a judgment entered in the district court for Pawnee county finding that certain funds deposited in the First State Bank of Pawnee City by D. W. Osborn, guardian of Frank M. Tannyhill, an incompetent person, were not entitled to a priority over other claims against said bank. The First State Bank of Pawnee City was a state bank which was taken over by the guaranty fund commission on February 9, 1925, because of insolvency. The guaranty fund commission continued in possession thereof and operated it as a going bank until November 17, 1927, when the bank was placed in the hands of a receiver appointed by the district court for said county. The claimant is the guardian of Frank M. Tannyhill, a mentally incompetent, who is a World War veteran, and by reason of mental and physical disability has been determined by the veterans' bureau of the United States government entitled to receive certain compensation and insurance payments from the United States. The guardian has received compensation and insurance for and on behalf of said Frank M. Tannyhill and deposited said funds in the First State Bank of Pawnee City. At the time the bank was placed in the hands of the receiver, there was on deposit in said bank to the account of the guardian the sum of $ 9.90 in a checking account and $ 8,972.57 in a savings account, all of which money, with the exception of $ 500, was derived from and paid by the United States government to the said guardian as compensation and insurance due the said Tannyhill. The guardian filed his claim with the receiver without claiming priority of said funds, and the court on March 7, 1928, allowed the claim as a prior lien on the assets of the bank and the guaranty fund of the state of Nebraska, of which there has been paid a 10 per cent. dividend. Subsequently, on the 29th of April, 1929, the guardian filed a petition in intervention, which was the beginning of this case, setting up the facts and asking that said funds be declared to be government funds and as such entitled to preference over claims of all other claimants and depositors by virtue of the federal statutes. The receiver answered, admitting the amount of the fund, but denied the same were government funds entitled to a priority, and denied that the bank, its officers, directors or stockholders voluntarily turned over the said bank to the department of trade and commerce and did not voluntarily commit the acts of bankruptcy, and further set out that such claim was res judicata.
The questions presented by the record in this case are as follows: First. Even if estoppel or res judicata does not apply, and if the funds were admitted to be funds of the United States, do not the provisions of section 3466, U.S. Rev. St., give the United States a prior lien on the assets of the bank for the funds deposited by the guardian, as against the other depositors of the bank? Second. Were the funds in question, when deposited in the bank by the guardian, the funds of the United States, and therefore entitled to priority under section 3466, U.S. Rev. St.? Third. Was the allowance of the claim of the guardian as a claim against the guaranty fund as a prior claim against the assets to the bank res judicata by which the guardian is estopped from now claiming priority as against all other claims?
If this deposit was funds of the United States, the question of the priority of the lien created by section 3466, U.S. Rev. St., over the lien created by the state statute in favor of other depositors of the bank has recently been discussed and determined by this court. State v. Thurston State Bank, ante, (121 Neb.) 407. Following that decision, we find that, if the deposit is funds of the United States, a lien is created prior to that of the other depositors of the bank.
In another recent case we have discussed the nature of the funds arising from the payment of the United States under the war risk insurance acts. See State v. Security Bank (121 Neb.) 521, post. This case presents a similar, though not an identical, proposition. The insured being an incompetent, the money was paid to his guardian. To carry out and accomplish its purpose, congress provided for the protection of such funds. Section 4783, U.S. Rev. St., provides for the punishment of every guardian having charge and custody of the pension of his ward, who embezzles the same. Section 450, 38 U.S.C. A., provides: "Where any payment under this chapter is to be made to a minor, other than a person in the military or naval forces of the United States, or to a person mentally incompetent, or under other legal disability adjudged by a court of competent jurisdiction, such payment may be made to the person who is constituted guardian, curator, or conservator by the laws of the state or residence of claimant, or is otherwise legally vested with responsibility or care of the claimant or his estate * * * And provided further, that the director, in his discretion, may suspend such payments to any such guardian, curator, conservator, or other person who shall neglect or refuse, after reasonable notice, to render an account to the director from time to time showing the application of such payments for the benefit of such minor or incompetent beneficiary." The money is paid by the United...
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