McDaniel v. Farmers & Merchants Bank , 37 Ga. App. 782 ( 1928 )

Stephens, J.

1. Notice of sanction and of the time and place of hearing of a petition for certiorari may be established otherwise than by an acknowledgment of service or other proof of notice appearing upon the petition itself. McAlister v. State, 77 Ga. 599 (3 S. E. 163); Jones v. Gill, 121 Ga. 93 (48 S. E. 688). Such notice may, upon the hearing of the certiorari, be established otherwise by proper proof, such as a written acknowledgment of service, signed by one of the attorneys for the defendant in certiorari, reciting that the written notice required under section 5190 of the Civil Code of 1910 has been made as required by law. The court therefore did not err in overruling the motion to dismiss the certiorari upon the ground that proof of notice of its sanction and of the time and place of hearing did not appear upon the petition.

2. Where one of two executors of a will who have qualified abandons the management of the estate and leaves it entirely to the coexecutor, the former is not by such abandonment estopped from asserting a mismanagement of the estate and a misappropriation of the funds thereof • by the coexecutor. In a suit against a bank by an executor of an estate, to recover of the bank money belonging to the estate which had been placed upon deposit in the bank by the coexecutor, and which was represented by a certificate of deposit issued to the plaintiff and the coexecutor as executors of the estate, where the bank .defended upon the ground that it held title to the certificate of deposit as security for an advancement made to the coexecutor, the court did not err in striking an amendment by the defendant which alleged that the plaintiff was, by reason of the abandonment of the management of the estate entirely to the coexecutor, estopped from asserting that the bank, when making the advancement to the coexecutor upon the security of the certificate, made him a personal loan with knowledge that the money was to be used, and was afterwards used by the eoexecutor for his own use, and thus became a party to the conversion.

3. Where funds belonging to an estate have been deposited in a bank and a certificate of deposit therefor has been issued to the qualified executors as executors of the estate, and the certificate has been transferred by indorsement by these executors and delivery to another person who has subsequently qualified as a coexecutor, the latter has authority as executor to control, for the benefit of the estate, the funds represented by the certificate of deposit, and may, in so doing, still have control over the funds after having deposited the certificate of deposit in another bank and taken therefor a second certificate of deposit from that bank, issued to him and one of the other executors, who at the time is his sole eoexecutor. The executor making the deposit in the second bank is, notwithstanding that the certificate of deposit is issued in his name and in the name of the other executor jointly as executors of the estate, entitled to control the funds. This is particularly true where his eoexecutor, although standing legally qualified as a coexecutor, has turned over to him and abandoned the entire management and control of the estate.

Decided March 3, 1928.

4. In a suit instituted by the sole surviving executor against the second bank, to recover from the bank, for and in behalf of the estate and as the property of the estate, the funds deposited with the bank and represented by the last certificate of deposit, a recovery can be had only upon the theory that, notwithstanding the defendant may have had knowledge that the funds represented by the certificate of deposit belonged to the estate, the defendant bank, with such knowledge, when advancing funds to the coexecutor upon the certificate and taking his individual note therefor, had or was charged with knowledge that the coexecutor intended to misappropriate such funds and apply them to his own use, and that the eoexecutor afterwards did in fact misappropriate the funds, and that the bank, in making the advancements with such knowledge of • intended misappropriation, participated with the coexecutor in such misappropriation. Carter n. Manufacturers’ National Bank, 71 Me. 448 (36 Am. R. 338; Smith v. Ayer, 101 U. S. 320 (25 L. ed. 955); 11 Am. & Eng. Enc. L. 1032.

5. In the absence of other facts demanding such a conclusion, the bank would not necessarily and as a matter of law be charged with knowledge of an intended or actual -misappropriation by the executor, merely by the fact of the making of the note under the circumstances indicated above and the depositing of the proceeds to the individual credit of the person making the note, where the proceeds were nevertheless paid to legatees of the estate on cheeks drawn upon such fund by him.

0. The verdict in favor of the plaintiff not being demanded, this the first grant of a new trial can not be disturbed.

Judgment affirmed.

Broyles, C. J., and JenJcins, P. J., concur. Ira Carlisle, M. C. Bairwich, for plaintiffs. 8. P. Cam, Jeff A. Pope, for defendant.