Commercial Nat. Bank & Trust Co. v. Hinton

103 So. 359, 138 Miss. 536, 1925 Miss. LEXIS 76

• Court: Mississippi Supreme Court
• Decided: April 6, 1925
• Docket: No. 24822.
• Status: Published

Opinion

Ethridge, J.,

delivered the opinion of the court.

About 1904 or 1905 B. F. Hinton was appointed guardian of Burgie Hinton and served as such until the 26th day of October, 1910. Just prior to this date a petition had been filed to remove B. F. Hinton as Guardian and to have him file a final account. On that day a decree was entered that a final account be filed, and it was agreed that the balance in the hands of the guardian was four hundred fifty-one dollars and thirty-three cents.. This fund was directed to be paid over to the guardian thereafter to be appointed. On the same day a second decree was entered reciting, “This day this cause came on to be heard on petition of the guardian of said James Hinton praying that he be allowed to resign said trust,” etc. This decree was styled No. 1200, headed “In the Matter of the Guardianship of Burgie Hinton, a Minor.” The other decree was headed “In the matter of the Final Account of B. F. Hinton, Guardian of Burgie Hinton, a Minor. ’ ’ The last decree, after appointing the mother of Burgie Hinton the guardian of her person, and that her guardian had filed his final account, and that same had been approved, decreed that B. F. Hinton — “be and he hereby is relieved from further duties as said guardian, and it is further ordered that the said mother of the said minor, the said Mrs. Austrander, is hereby appointed guardian of the person of said minor on her taking the oath prescribed by statute, and that the Commercial Bank & Trust Company .of Laurel, Miss, is appointed guardian of the estate of said minor, on its giving bond in the sum of five hundred dollars and taking oath prescribed by statute, and the said guardian is directed to pay to the Commercial Bank & Trust Company of Laurel, Miss., the sum of four hundred fifty one dollars and thirty-three cents, the amount in his hands belonging to the said minor, and on the payment of the same to be discharged from further liability on his bond as said guardian. ’ ’

The .records did not show that any petition was filed by appellant to be appointed guardian, or that it had executed any bond or qualified as such guardian. The original file of papers was lost, but the dockets of. the chancery court did not show the filing of such petition by the appellant bank, or that it had filed any bond or otherwise qualified and no reports had been filed. Nothing was don'e until 1912, when B. F. ITinton went to the bank and deposited four hundred ninety-seven dollars and twenty-six cents, the deposit slip for which read as follows :

“Deposited in Commercial Bank & Trust Co., Laurel, Miss., by Burgle Hinton, Minor, 1/27/1912.

“Items not payable in Laurel are taken at depositor’s risk and credited subject to actual final payment. This bank, as agent for depositor, will forward such items either direct to drawee, or another bank in the same city', or indirectly through correspondents in other cities. “Beceived from B. F. Hinton, guardian, on 1/27/12:

“Principal ..................................................$H51.33

Interest 1 year at 8 per cent................................... 36.10

Interest 3 months and 1 day at 8 per cent..................... 9.83

“Total ....................................................$497.26

“Duplicate Deposit Slip, Not Negotiable.

‘ ‘ Commercial Bank & Trust Co., “[Signed] By P. H. Saunders.”

The deposit remained until 1923, when Burgie Hinton became of age and went to the bank and demanded a settlement. Appellant offered her the amount of the original deposit without interest, which she refused to take, and filed a suit for an accounting, claiming ten per cent, interest from January 27, 1912, to March 27, 1914, and eight per cent, interest from then on to final settlement, making the total amount demanded nine hundred eighty-six dollars and ninety-eight cents.

B. F. Hinton, the former guardian, and two other witnesses testified that when the deposit was made in the bank that the president of the bank, Dr. Saunders, was notified that the bank had been appointed guardian for appellee; that Dr. Saunders said he did not know about it, and left the bank and went somewhere, and returned after a little while and stated that he would take it and gave receipt for the money, four hundred ninety-seven dollars and twenty-six cents. The cashier of the bank, who was also the trust officer, testified that he had no knowledge that the bank had ever been appointed guardian; that the bank had never accepted the guardianship, and that all that the books showed was a deposit made as above stated to Burgie Hinton, a minor; that the bank at all times is willing to pay over the original deposit amounting to four hundred ninety-seven dollars and twenty-six cents, without interest, upon satisfactory proof that said Burgie Hinton is of age; that the bank was •then ready to pay said amount; also, that when demand was made for an accounting, and the bank was informed of the contention of the appellee, that said amount was transferred to the savings department and interest at four per cent, per annum was offered to be paid. The testimony of the cashier does not disprove the fact that the money was received by Dr. Saunders, the president of the bank, to be used for the minor.

The chancery clerk was introduced as a witness and exhibited docket entries of the chancery court with the result above stated. The docket and records showed that no bond was filed by the bank, no oath of office taken, and no other qualification made by the bank, and no reports made by the bank as guardian'or otherwise.

The chancellor held the appellant liable for six per cent, interest from the date of the original deposit, and disallowed the contentions of complainant as to the ten per cent, and eight per cent, claimed. From this decree appellant takes a direct appeal and appellee a cross appeal.

We do not thdyik that the bank became a guardian undel- the circumstances. It had never petitioned or consented thereto, and had never acted as such. It received the money for deposit, and this deposit showed that the owner was a minor. Under the circumstances, the de^posit would draw interest at the legal rate froml the date of the deposit, it not being an ordinary deposit, but money had and received to be kept until the minor became of age or until the guardian had qualified to receive it. We think the chancellor’s decree is correct, and the judgment will be affirmed on direct and cross appeal.

Affirmed.