Citation Numbers: 158 A. 251, 306 Pa. 148
Judges: OPINION BY MR. JUSTICE DREW, January 5, 1932:
Filed Date: 11/27/1931
Status: Precedential
Modified Date: 1/13/2023
Argued November 27, 1931. This is an appeal from the action of the court below in making absolute a rule for judgment for want of a sufficient affidavit of defense.
There are no disputed facts in the case. By the will of Charles F. Hall, who died on February 2, 1901, Mary I. Hall, one of the plaintiffs, was designated executrix of his estate, and she was given a life interest in the income *Page 152 therefrom. She acted as executrix until February 7, 1921, on which date, on petition of all parties, Mary I. Hall and Theodore E. Nickles were appointed trustees of the estate, and from that date its entire management was left in Nickles's hands. He was a vice-president and director of the Northern National Bank, and carried the Hall Estate account in that bank. He also carried therein two personal accounts, one in the name of "Theodore E. Nickles," the other in the name of "Theodore E. Nickles, Special." On September 24, 1924, the bank account standing in the name of "Theodore E. Nickles" was overdrawn to the amount of $2,754.11, and there was a credit balance in the "Theodore E. Nickles, Special" account of $3,628.56. On that day Nickles drew a check, which showed on its face that it was drawn on the Hall account, having printed on it "Estate of Charles F. Hall, Dec'd," to his own order in the sum of $4,000. The next day he deposited this check in the "Theodore E. Nickles" account, thereby paying his personal debt to the bank. The defendant is, by merger, the successor of the Northern National Bank. Nickles's fraudulent conduct was not discovered until after his death in 1930, and the appointment of the plaintiff company as trustee in his stead. Within two months after the appointment of the new trustee, this action of assumpsit was begun.
As the allowance of the overdraft was in the nature of a loan (Pittsburg v. First Nat. Bank,
In both capacities the defendant bank acted wrongfully, and must be held liable to the injured beneficiary of the trust; as a creditor, the bank received this check under circumstances giving notice that the trustee was committing a breach of trust, and as depositary of the trust funds, it paid the check, knowing that it was being used in a breach of trust.
It is contended that as there was a credit balance, taking Nickles's two personal accounts into consideration, he was not indebted to the bank, that therefore the bank was not in the position of a creditor, and that hence the notice imputed to one who accepts a check on a trust account in payment of a personal debt of the trustee *Page 154 cannot be imputed to the defendant bank. The learned judge of the court below has answered this argument conclusively in his memorandum opinion; he says: "While the bank could, perhaps, have protected itself by setting off the amount of the overdraft against the credit balance in Nickles's special account, it did not, in fact, do so, but accepted moneys which it was on notice from the face of the check were trust funds, and applied them to the discharge of the trustee's personal debt to it."
It is further contended by the appellant that inasmuch as the transaction upon which this action of assumpsit is based took place six years and two months before the suit was begun, the statute of limitations has run, and the plaintiffs are barred from recovering upon their claim. The defendant having received trust property from a trustee with knowledge that he was acting wrongfully — was paying off his personal debt with trust funds — joined in the breach of the trust and thus became a trustee ex maleficio. As a participant in the breach of trust, it holds the property impressed with the same trust, and is subject to the same rules and remedies, and has no greater rights or privileges, than the original trustee from whom it received the property: Harrisburg Bank v. Tyler, 3 W. S. 373; Sadler's App.,
The statute of limitations applies to all cases at law and in the orphans' court, and to all cases in equity except those technical and continuing trusts over which equity has exclusive jurisdiction: Yorks's App.,
For these reasons it follows that the defendant is equally liable at law or in equity for the trust funds wrongfully taken. The judgment of the court below is affirmed. *Page 156
Fox v. Cash , 11 Pa. 207 ( 1849 )
Norris's Appeal , 71 Pa. 106 ( 1872 )
Sadler's Appeal , 87 Pa. 154 ( 1878 )
Penn Bank v. Frankish , 91 Pa. 339 ( 1879 )
Sankey v. McElevey , 104 Pa. 265 ( 1883 )
Hostetter v. Hollinger , 117 Pa. 606 ( 1888 )
Estate of Marshall , 138 Pa. 285 ( 1890 )
Appeal of Keyser , 124 Pa. 80 ( 1889 )
Pennsylvania Title & Trust Co. v. Meyer , 201 Pa. 299 ( 1902 )
Safe Deposit & Trust Co. v. Diamond National Bank , 194 Pa. 334 ( 1900 )
In re Assigned Estate of Passmore , 194 Pa. 632 ( 1900 )
Jackson v. Thomson , 222 Pa. 232 ( 1908 )
Pittsburg v. First National Bank of Sheraden , 230 Pa. 176 ( 1911 )
Gruber v. Hays , 280 Pa. 489 ( 1924 )
Morrison v. Blake , 33 Pa. Super. 290 ( 1907 )
Schmitt v. Potter Title & Trust Co. , 61 Pa. Super. 301 ( 1915 )
N.-P. Trust Co. v. Middleton , 300 Pa. 522 ( 1930 )
Fehr v. Campbell , 288 Pa. 549 ( 1927 )
Bruner v. Finley , 187 Pa. 389 ( 1898 )
louis-w-sherwin-v-the-oil-city-national-bank-a-national-banking , 229 F.2d 835 ( 1955 )
Higbee v. Walsh , 229 Iowa 408 ( 1940 )
Peoples Nat. Bank v. Guier , 284 Ky. 702 ( 1940 )
Banking Trust Co. v. Bender , 175 Md. 625 ( 1939 )
Davidson v. Stagg , 94 Mont. 272 ( 1933 )
Schofield v. Cleve. Tr. Co. , 149 Ohio St. 133 ( 1948 )
Witherow v. Weaver , 337 Pa. 488 ( 1940 )
Davis v. Pennsylvania Co., Etc. , 337 Pa. 456 ( 1940 )
Sulkin v. First Nat. Bk. Tr. Co. , 344 Pa. 251 ( 1942 )
Stroudsb'g Security Trust Co. Case , 145 Pa. Super. 44 ( 1941 )
Gainey v. Brotherhood of Railway & Steamship Clerks, ... , 275 F. Supp. 292 ( 1967 )