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

BARNARD, P. J.

The appellant was appointed executrix of the estate of her deceased husband in March, 1927. She received a draft for $21,753.60 payable to herself as such executrix and, on October 9, 1930, endorsed and turned over this draft to the Bank of Italy, of which bank the respondent is the successor. She was given a cashier’s check for $21,000, payable to herself as such executrix, and $753.60 was deposited in her personal account in the' bank. She had no account as executrix. An officer of the bank asked her what she was going to do with the money and advised her to let the bank invest it for her. He took her upstairs and introduced her to a salesman employed by the National Bankitaly Company. On October 21, 1930, the cashier’s check for $21,000 was deposited in her individual bank account and this account was charged with $17,700.83, representing the purchase price of nine bonds issued by Associated Gas & Electric Company and ten bonds issued by Walter G. McCarty Company, which bonds the appellant, individually, had purchased from the National Bankitaly Company. The appellant had endorsed the cashier’s check in her capacity as executrix and on October 21st she was given a charge slip showing that her account had been

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charged with $17,700.83, and a few days later she was handed a sales slip confirming the sale of the bonds to her and a little later the bonds were delivered to her. She sold about half of the bonds between March 6, 1931, and April 12, 1932, depositing the money in her private account and using the same in the purchase of a home.

The appellant was the sole devisee and legatee in the estate of her husband and on March 9, 1931, she filed her final account and petition for distribution in that estate,' setting forth that she had on hand in cash $22,152.60, which included the proceeds of the draft first referred to, and that all debts and expenses of administration had been fully paid. On March 20, 1931, an order and decree was entered approving her final account and distributing to her all of the estate.

On August 21, 1933, the appellant commenced this action, alleging in her complaint that the respondent, with knowledge that the funds belonged to the estate, had induced her to use the same in the purchase of these securities for her personal use and benefit, and that by this conduct the funds of the estate had been depleted and the estate damaged in the sum of $17,700.83. The prayer is for judgment in that amount, with interest. The court made findings in favor of the respondent and this appeal followed the judgment.