Purdy v. Bank of America National Trust & Savings Ass'n

THE COURT.

The plaintiff sued to recover a trust fund deposit of $7,296.19 applied by the predecessor of the defendant bank under its claim of banker’s lien on a certain promissory note for $14,500 executed by the trustees of the trust property. The plaintiff recovered judgment and the defendant appealed.

Alberto Trescony died testate in 1892. In 1894, pursuant to the provisions of his will, there was distributed to Julius A. Trescony and Robert F. Johnson, as trustees, a one-third interest in certain real property of thé estate consisting of some 45,000 acres of grain land, the same to be held, invested, managed and controlled for the benefit of Anita Christal, now Anita Christal Purdy, the plaintiff herein, and her brother Leo Christal, the children of a predeceased daughter of the testator, until they attained the age of thirty years. In 1895 the estate was partitioned and the trustees received title to 15,336 acres, the balance going to other issue of the testator including Julius A. Trescony, a son of the decedent and one of the trustees herein, and a daughter of the deceased, the wife of Robert F. Johnson, the other trustee. In 1895 the trustees opened an account with the Salinas City Bank, originally the defendant herein but since merged with «the predecessor of the defendant, Bank of America National Trust & Savings Association, in the names of themselves as trustees for Anita Christal and Leo Christal. Between the years 1895 and 1908 an overdraft in the" account to the extent of $13,836.97 was created. In January, 1909, the trustees opened a new account with the bank in their names as trustees for Anita Christal Purdy to which they caused to be charged the full amount of the overdraft. In September, 1909, they executed and delivered to the defendant their promissory note for $14,500, signed by themselves as trustees for Anita Christal Purdy and Leo Christal, which purported to cover the amount of the overdraft. On October 30, 1916, there appeared on the bank’s books as a credit in said trustees’ account the sum of

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$7,296.19. It is conceded that this represented funds belonging to the trust estate of Anita Christal Purdy. On the same date the bank applied the credit as part payment on a renewal note of $14,500 dated December 20, 1914. In the same year, 1916, the plaintiff, having attained the age of thirty years, brought the present action to recover the amount of the credit, alleged by her to have been wrongfully appropriated by the bank.