Tucker v. N.H. Trust Co.

• Decision Date: 30 July 1897
• Citation: 44 A. 927,69 N.H. 187
• Parties: TUCKER v. NEW HAMPSHIRE TRUST CO.
• Court: New Hampshire Supreme Court

44 A. 927

69 N.H. 187

TUCKER

v. NEW HAMPSHIRE TRUST CO.

Supreme Court of New Hampshire. Hillsboro.

July 30, 1897.

Appeal from probate court, Carroll county.

Proceeding by Nathaniel F. Tucker, trustee, against the New Hampshire Trust Company. From a decree in favor of defendant, plaintiff appeals. Case discharged.

Samuel C. Eastman, for appellant.

Oliver E. Branch and Edwin F. Jones, for respondent.

CLARK, J. The plaintiff is the successor of the New Hampshire Trust Company, as trustee under the will of Isaac Adams, by appointment of the probate court for Carroll county. The trust company was appointed by the probate court May 28, 1888, received practically $41,600 as a trust fund, and continued to act as trustee until it resigned, in 1895. April 8, 1890, the trust funds, having previously been invested in United States bonds and mortgage notes, were deposited in the savings department of the trust company, where they have since remained, except that one-third of the deposit has been paid to, and is now held by, the plaintiff, who received it without objection. When the plaintiff was appointed trustee, the trust company assigned to him deposit book No. 219 in its savings department, showing a deposit of $30,974.60 to the credit of the "New Hampshire Trust Company, Trustee Adams Fund." The probate court allowed the account, and decreed that the trust company should be discharged from further liability as trustee. The plaintiff appeals from this decree, claims that he is a preferred creditor of the trust company for the full amount of the deposit, and asks that "the trust company be ordered and directed to pay over to your petitioner the amount deposited by it in its savings department in full, and that it be ordered to make immediate payment, out of such funds as may be available therefor, of a sum sufficient to make up for the deficiency in the assets in the savings department." The plaintiff claims that the deposit in the savings department was illegal, and that he is entitled to be paid the full amount thereof, whether the funds so deposited are still there, or can be specifically traced and identified, and regardless of the claims and rights of all other depositors. The trust company was made, by its charter, a legal depositary for the funds of trustees, guardians, administrators, and others (Laws 1887, c. 169), and was authorized to act as trustee when duly appointed. If the deposit had been made by any other trustee, it would have been a...