Opinion by
Rice, P. J.,
According to the testimony of John Bender, who was present at the ceremony, Michael Staib was admitted to membership in the Harmony Society on February 15, 1869. At that time he had on deposit in the Economy Savings Institution the sum of $640. Between that time and February 15, 1871, when he signed the articles of association, he made two deposits amounting to $860, and drew one check on the fund for $500. He was credited with interest on January 1, 1870, $36.43, and on January 1, 1871, $76.03. The balance standing to his credit when he signed the articles of association was $1,112.46. After that time, as before, he was annually credited on the books of the bank with interest at four per cent until January 1, 1883. In April, 1893, Michael Staib died, not haying disturbed the account, nor been credited with or demanded interest in the mean time. On June 19, 1893, letters of administration were issued to the accountant. At that time the balance of principal [454]*454and accrued interest, as shown by the books of the bank, was $1,658.69. This was paid to the administrator, who charged himself with it in his account filed in September, 1895.
1. The auditor appointed to report on the exceptions, to restate the account if necessary, and to distribute the balance, surcharged the administrator with interest at the rate of four per cent from January 1, 1883, to June 19, 1893, the date when the fund came into his hands. This conclusion was put on the ground that the bank was liable, under a contract with the depositor, to pay interest; therefore the administrator was derelict in not demanding and collecting it. But it is to be borne in mind, that the money came into the possession of the bank as an ordinary deposit, and not as a loan on time. For aught that appears to the contrary, it was subject to check, or to withdrawal in any other legitimate mode, at any time and without previous notice to the bank. Ordinarily a general deposit draws no interest, unless by agreement, until upon demand for payment it is refused or unreasonably delayed. The only evidence tending in any degree to show that there was an agreement to pay interest is the fact, that for a time the decedent’s account was credited with interest. Each credit of interest may be regarded as an implied admission of liability for the amount credited, but although it is a circumstance bearing legitimately upon the question, it is not, of itself, an admission of liability for interest to accrue in the future. Such an agreement might possibly be inferred, if proof of the crediting of interest annually during a series of years had been accompanied by evidence, for example, of a general usage of banks, or of this particular bank, during the period between 1883 and 1893, to pay, or credit depositors with, interest on annual balances. But in the absence of any other evidence whatever, and especially in view of the fact that during the eight years in question the depositor apparently raised no objection to the account as kept by the bank, we do not think that the bare fact, that the bank, prior to 1883, credited the account with interest on annual balances, raises such a clear presumption of liability for interest, after that time, as would warrant a surcharge of the administrator.
The question whether, under the circumstances of the case, the administrator was chargeable with interest from the expiration of one year after the fund came into his hands to the date [455]*455of the filing of his account, is not raised by any assignment of error; therefore we will not discuss it.
2. We now come to the question of distribution. The dispute is between the two grandchildren of Michael Staib and the Harmony Society. The former claim as his next of kin, and the latter by virtue of the articles of association signed by the decedent in 1871, which, it is urged, operated as an assignment of all his property, including his choses in action, and therefore vested the ownership of this fund in the society.
The very statement of the claim of the Harmony Society suggests a doubt as to the jurisdiction of the orphans’ court, to take cognizance of it in this proceeding; for the general rule is, that upon distribution of a decedent’s estate, as shown by the final account of the administrator, no one is entitled to claim any portion thereof who does not claim it through the decedent, and as part of his estate, either as creditor, legatee or next of kin: McBride’s Appeal, 72 Pa. 480; Braman’s Appeal, 89 Pa. 78; Winton’s Appeal, 111 Pa. 387; Law’s Estate, 140 Pa. 444. It is contended, that this general rule does not apply where the fund is wrongfully included in the' account, either because, though in the name of decedent, it is really a trust, or because the title is in another person. In support of this proposition the counsel cite Marshall v. Hoff, 1 W. 440, Robb’s Appeal, 41 Pa. 45, Miller’s Appeal, 84 Pa. 391, Rupp’s Appeal, 100 Pa. 531, McDermott’s Appeal, 106 Pa. 358, and McCarron’s Est., 15 W. N. C. 485.
Let us look at the case from this standpoint. Arguing upon the assumption that when, upon the distribution of a fund accounted for by an administrator as the assets of the estate, such a case is shown, the orphans’ court has the general power of a court of equity to compel payment of the fund to the cestui que trust, or to the true owner, as the case may be,’ the right of the Harmony Society to be awarded the fund in question is reasoned out in this way: The relation between bank and depositor is that of debtor and creditor simply; after February 15, 1871, Michael Staib held the legal title to the chose in action, the debt of the bank, in trust for the Harmony Society ; if the money had been paid to him in his lifetime he would have been compellable to pay it over to the Harmony Society; when the administrator received it, it went into the [456]*456assets of the decedent’s estate, subject to the same trust; therefore, the rule laid down in McBride’s Appeal does not prevent the orphans’ court from awarding it to the equitable owner.
In this statement of the case the fact that the Harmony Society was a partner in the firm conducting the banking business as the Economy Savings Institution is entirely ignored, whereas we regard it as of the greatest significance, both as related to the question of this being a trust fund, as well as to the question of the right of the association to dispute the title of the estate in this proceeding.
The burden of proof was on the claimant. The presumptive title to a deposit in a bank is in the person in whose name it stands. To overcome this prima facie presumption, the society relied on a general assignment of all his property contained in the articles executed by Michael Staib in 1871, followed by no attempt on the part of the donee to reduce the chose to its exclusive possession. Opposed to this was the evidence that the banking firm annually credited Michael Staib with interest for a dozen years thereafter, and in the account, as finally made up on its own books more than twenty years thereafter, charged itself as debtor to him.
Taking its own books as evidence that the relation of debtor and creditor, and not that of trustee and cestui que trust, existed between them at the death of Michael Staib, does not necessarily involve any impeachment of the assignment contained in the articles of association signed by him. Those articles related to property owned by the member at the time of signing, “ in possession or in remainder, or in reversion or in expectancy; ” they did not bind him to transfer to the society property acquired afterwards.
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Opinion by
Rice, P. J.,
According to the testimony of John Bender, who was present at the ceremony, Michael Staib was admitted to membership in the Harmony Society on February 15, 1869. At that time he had on deposit in the Economy Savings Institution the sum of $640. Between that time and February 15, 1871, when he signed the articles of association, he made two deposits amounting to $860, and drew one check on the fund for $500. He was credited with interest on January 1, 1870, $36.43, and on January 1, 1871, $76.03. The balance standing to his credit when he signed the articles of association was $1,112.46. After that time, as before, he was annually credited on the books of the bank with interest at four per cent until January 1, 1883. In April, 1893, Michael Staib died, not haying disturbed the account, nor been credited with or demanded interest in the mean time. On June 19, 1893, letters of administration were issued to the accountant. At that time the balance of principal [454]*454and accrued interest, as shown by the books of the bank, was $1,658.69. This was paid to the administrator, who charged himself with it in his account filed in September, 1895.
1. The auditor appointed to report on the exceptions, to restate the account if necessary, and to distribute the balance, surcharged the administrator with interest at the rate of four per cent from January 1, 1883, to June 19, 1893, the date when the fund came into his hands. This conclusion was put on the ground that the bank was liable, under a contract with the depositor, to pay interest; therefore the administrator was derelict in not demanding and collecting it. But it is to be borne in mind, that the money came into the possession of the bank as an ordinary deposit, and not as a loan on time. For aught that appears to the contrary, it was subject to check, or to withdrawal in any other legitimate mode, at any time and without previous notice to the bank. Ordinarily a general deposit draws no interest, unless by agreement, until upon demand for payment it is refused or unreasonably delayed. The only evidence tending in any degree to show that there was an agreement to pay interest is the fact, that for a time the decedent’s account was credited with interest. Each credit of interest may be regarded as an implied admission of liability for the amount credited, but although it is a circumstance bearing legitimately upon the question, it is not, of itself, an admission of liability for interest to accrue in the future. Such an agreement might possibly be inferred, if proof of the crediting of interest annually during a series of years had been accompanied by evidence, for example, of a general usage of banks, or of this particular bank, during the period between 1883 and 1893, to pay, or credit depositors with, interest on annual balances. But in the absence of any other evidence whatever, and especially in view of the fact that during the eight years in question the depositor apparently raised no objection to the account as kept by the bank, we do not think that the bare fact, that the bank, prior to 1883, credited the account with interest on annual balances, raises such a clear presumption of liability for interest, after that time, as would warrant a surcharge of the administrator.
The question whether, under the circumstances of the case, the administrator was chargeable with interest from the expiration of one year after the fund came into his hands to the date [455]*455of the filing of his account, is not raised by any assignment of error; therefore we will not discuss it.
2. We now come to the question of distribution. The dispute is between the two grandchildren of Michael Staib and the Harmony Society. The former claim as his next of kin, and the latter by virtue of the articles of association signed by the decedent in 1871, which, it is urged, operated as an assignment of all his property, including his choses in action, and therefore vested the ownership of this fund in the society.
The very statement of the claim of the Harmony Society suggests a doubt as to the jurisdiction of the orphans’ court, to take cognizance of it in this proceeding; for the general rule is, that upon distribution of a decedent’s estate, as shown by the final account of the administrator, no one is entitled to claim any portion thereof who does not claim it through the decedent, and as part of his estate, either as creditor, legatee or next of kin: McBride’s Appeal, 72 Pa. 480; Braman’s Appeal, 89 Pa. 78; Winton’s Appeal, 111 Pa. 387; Law’s Estate, 140 Pa. 444. It is contended, that this general rule does not apply where the fund is wrongfully included in the' account, either because, though in the name of decedent, it is really a trust, or because the title is in another person. In support of this proposition the counsel cite Marshall v. Hoff, 1 W. 440, Robb’s Appeal, 41 Pa. 45, Miller’s Appeal, 84 Pa. 391, Rupp’s Appeal, 100 Pa. 531, McDermott’s Appeal, 106 Pa. 358, and McCarron’s Est., 15 W. N. C. 485.
Let us look at the case from this standpoint. Arguing upon the assumption that when, upon the distribution of a fund accounted for by an administrator as the assets of the estate, such a case is shown, the orphans’ court has the general power of a court of equity to compel payment of the fund to the cestui que trust, or to the true owner, as the case may be,’ the right of the Harmony Society to be awarded the fund in question is reasoned out in this way: The relation between bank and depositor is that of debtor and creditor simply; after February 15, 1871, Michael Staib held the legal title to the chose in action, the debt of the bank, in trust for the Harmony Society ; if the money had been paid to him in his lifetime he would have been compellable to pay it over to the Harmony Society; when the administrator received it, it went into the [456]*456assets of the decedent’s estate, subject to the same trust; therefore, the rule laid down in McBride’s Appeal does not prevent the orphans’ court from awarding it to the equitable owner.
In this statement of the case the fact that the Harmony Society was a partner in the firm conducting the banking business as the Economy Savings Institution is entirely ignored, whereas we regard it as of the greatest significance, both as related to the question of this being a trust fund, as well as to the question of the right of the association to dispute the title of the estate in this proceeding.
The burden of proof was on the claimant. The presumptive title to a deposit in a bank is in the person in whose name it stands. To overcome this prima facie presumption, the society relied on a general assignment of all his property contained in the articles executed by Michael Staib in 1871, followed by no attempt on the part of the donee to reduce the chose to its exclusive possession. Opposed to this was the evidence that the banking firm annually credited Michael Staib with interest for a dozen years thereafter, and in the account, as finally made up on its own books more than twenty years thereafter, charged itself as debtor to him.
Taking its own books as evidence that the relation of debtor and creditor, and not that of trustee and cestui que trust, existed between them at the death of Michael Staib, does not necessarily involve any impeachment of the assignment contained in the articles of association signed by him. Those articles related to property owned by the member at the time of signing, “ in possession or in remainder, or in reversion or in expectancy; ” they did not bind him to transfer to the society property acquired afterwards. Nor is it clear that the confirmatory articles of 1890 contemplated a gift to the society of property acquired in the mean time. Therefore, it might well be that the provision in the first articles operated as an equitable assignment of the chose in action in question, and yet that by some arrangement, the exact nature of which, owing to the lapse of time and the death of witnesses, it would be impossible to prove by direct testimony, the rights of the society in this particular fund had been surrendered, and the rights of Michael Staib had revested.
[457]*457The proposition that the Harmony Society is not affected by the acts of the Economy Savings Institution because there is no evidence that the former society “ through the proper channels knew that Michael Staib .... had a deposit in the bank,” cann ot be sustained. In the first place, the partners in the bank are presumed, prima facie at least, to have had notice of the deposit, and to be responsible for the manner in which the account was kept. See McClurkan v. Byers, 74 Pa. 405, and Stockdale v. Keyes, 79 Pa. 251. In the second place, one of the trustees of the Harmony Society had express notice of the deposit in 1883, and yet, so far as appears, no attempt was made to withdraw it, or to have it transferred to the credit of the society.
It is true there is no affirmative evidence that Michael Staib asserted ownership of the fund after 1871. But this absence of evidence to that effect is scarcely sufficient to warrant an affirmative finding’that he did not assert it. Moreover, his inaction was not extraordinary. The money was safe, and he did not need it for his present wants ; the fact that he did not draw it out lacks the significance of the positive acts of the Economy Savings Institution, to which we have called attention.
There is the additional fact distinctly found by the auditor and court below, and not controverted on the argument before us, that the Economy Savings Association (the claimant being a partner in that concern) paid the money to the administrator. It is urged, that it would have been against public policy to refuse payment, and, therefore, the payment cannot be regarded as voluntary. We'are unable to assent to this proposition. The rule of public policy was thus stated by Justice Paxson in Bank v. Mason, 95 Pa. 113 : “ It is clearly against public policy to permit a bank that has received money from a depositor, credited him therewith upon its books and thereby entered into an implied contract to honor his'check, to allege that the money •deposited belonged to some one else. This may be done by an attaching creditor or by the true owner of the fund, but the bank is estopped by its own act.” In the same case it was said: “ It is well settled that money deposited in a bank to the credit of A. may be shown to be the property of B. It may be reached by attachment on the part of the judgment creditors of B., or its payment may be stopped by a proper notice on the part of [458]*458B., that the money belongs to him.” This qualification of the general rule of public policy, that a bank cannot deny the title of the person in whose name a deposit stands, is recognized in all the cases to which our attention has been called. If a bank is justified in refusing payment after notice from the true owner of the fund, he being a third person, clearly, the banking firm of which the present claimant was a member might have held on to the fund without violating any rule of public policy. The fact, therefore, that the claimant paid, or as a member of the firm permitted to be paid, the deposit to the administrator, cannot be denied effect as some evidence of his right to the fund, upon the ground that the payment was compulsory.
Much reliance is placed on McDermott’s Appeal, 106 Pa. 358. The case would be more closely analogous if the Miners Savings Bank that paid over the deposit to the administrator, had been the claimant. The parties in that case recognized the difficulty in the way of an adjudication of the Ownership of the fund on distribution and agreed that it might be disposed of in that proceeding instead of in the proceeding then pending, to strike the item from the administrator’s account. This appears in the opinion of the auditing judge. The case certainly does not rule, that one having the possession of a fund standing in the name of a decedent may voluntarily pay it over to the administrator, and then on distribution deúy the title of the estate.
If there were any evidence that this method was resorted to, with the assent of the parties in interest, to obtain an adjudication of a disputed question of ownership, the case would present a different aspect. But as it stands, there is no evidence that any question was raised, prior to distribution, as to the real ownership. Nor is there any evidence, that the fund went into the administrator’s hands under any mistake of law or fact, or subject to any agreement or understanding that the question of ownership was left open. Under these circumstances, it may well be doubted, whether, upon distribution, the administrator could be treated as a mere stakeholder, and the orphans’ court be made the forum for deciding a dispute between the estate and the society.
We need not, however, put our decision upon the ground that the court had not jurisdiction. Nor do we say, that the books [459]*459of the bank are conclusive evidence against the society of Michael Staib’s ownership of the fund. It is sufficient for present purposes to say, that, viewing the evidence as a whole, it does not clearly and satisfactorily appear that at his death the real ownership of the fund was not in him. The auditor correctly found that it was distributable to the next of kin.
The decree is reversed at the costs of the appellees, the' balance ($1,580.39) in the hands of the administrator is distributed as follows: to costs of audit as shown by the auditor’s report,. $144;.to Gustave F. Bender, $718.19; to Pauline Bender, $718.19, and the record is remitted to the court below with directions to carry this decree into effect.