Helen F. Woodbridge, as Trustee under the Last Will and Testament of Samuel Freeman, Deceased, Appellant, v. The First National Bank of Saratoga Springs, Respondent

Helen F. Woodbridge, as Trustee under the Last Will and Testament of Samuel Freeman, Deceased, Appellant, v. The First National Bank of Saratoga Springs, Respondent. Trust funds deposited in bank — responsibility of the bank for their withdrawal by the depositor—basis of an additional allowance of costs. A bank, in the absence of notice of an adverse claim, may properly assume that the person who make% deposits to his own credit has the right to draw them out. In an action 'by a trustee against a bank, in which her predecessor in the trust had made deposits, to recover trust moneys which the bank was alleged to have negligently and wrongfully permitted such predecessor to withdraw and convert to his own use and to have applied upon debts owing to it by him, it is incumbent upon the plaintiff to show either that all the deposits were of trust moneys, or what particular deposits were such; the plaintiff cannot impose upon the defendant the duty of establishing the character of the moneys deposited. Where the plaintiff in such action demands judgment that the bank be required to account and pay to the plaintiff all moneys of said estate due upon such an accounting and for such other or further relief as may be proper, the subject-matter of the action is not the right to an accounting, but the deposits of trust moneys, and the court’may properly grant an extra allowance based upon the amount of such trust moneys. Appeal by the plaintiff, Helen F. Woodbridge, as trustee under the last will and testament of Samuel Freeman, deceased, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the coutity of Saratoga on the 26th day ■of January, 1899, upon the decision of the court, rendered after a trial at" the Saratoga Trial Term, before the court without a jury, and also from an order made at the Clinton Special Term and entered in the office of the clerk of the county of Saratoga on the 19th day of January, 1899, granting the defendant an extra allowance ■of costs. In December, 1870, Samuel Freeman died leaving a will, after-wards duly admitted to probate, in which, after some specific bequests, the testator gave all the rest of his property to the executor thereinafter named and to his successor in trust to receive the rents and profits and annual avails, and pay therefrom to his only daughter, Helen Woodbridge, the wife of John Woodbridge, during her life, the annual sum of $3,500 in semi-annual payments, at her decease the trust fund and property to go and belong to her child, or children, if more than one, in equal parts; in case his daughter died leaving no child or descendants, then the trust fund and property to go to his next of kin and heirs at law. Power was given to the daughter to dispose by will of one-half of the property. Augustus Boches was appointed e-xecutor and trustee on condition that he accept the trust at an annual compensation of $500 in full of all claims for labor, expenses and commissions as executor and trustee. The trustee was authorized to sell any of the real estate with the written ■consent of the daughter. Bockes accepted the trust, and letters testamentary were issued to him on December 24, 1870, and he thereupon entered upon the performance of his duties as executor and trustee. On the 28th of June, 1872, he gave to John Wood-bridge a power of attorney, authorizing him. to collect and receive all moneys due or to become due to the executor and trustee as such, and to take possession of all the property belonging to the estate, and to use, manage and control the same. It was stated in the power of attorney that it was given with the sanction and approval of Mrs. Woodbridge, and that the attorney was to be deemed her agent and "attorney in all matters and things to be done thereunder, and a-writing to that effect, and signed by her, was attached. On the 9th of June, 1894; Bockes, by permission of the court by order of that date, resigned his trust as such executor and trustee, aud the plaintiff, Helen F. Woodbridge, the daughter of the deceased, was appointed trustee in his place. This action was commenced on May 10, 1897. In the complaint,, among other things, it is alleged that between June 28, 1872, and April 6, 1876, the defendant received from John Woodbridge in divers amounts the sum of $61,102.42, moneys belonging to said estate and trust, placing the same to the credit - of the account of ■ Helen F. Woodbridge, of which account said John had control, which moneys so deposited with defendant the defendant thereafter negligently and wrongfully permitted the said John to withdraw from said bank and to convert to his own use, or which moneys, or some part thereof, were thereafter converted by the defendant to its own uses, being applied by the defendant to the payment of personal indebtedness owing to the defendant by the said John ; that on April 6, 1876, said John opened a personal account in his own name with the defendant, and thereafter, between the dates of April 6, 1876, and- June 8,, Í894, the defendant received on deposit to the credit of the said John moneys of said estate amounting in the aggregate to $161,653.12, which moneys, or some part thereof, the defendant wrongfully and unlawfully permitted said' John to convert to his own use by withdrawing the same from the bank, or which moneys, or some part thereof, the defendant converted to its own use in satisfying personal debts owing to it by said John, the amounts of which were unknown to plaintiff; that all such moneys were known to defendant to be owned by said estate and impressed with said trust. The deféndant, among other things, in its answer, admits having an account at its bank wdth Helen F. Woodbridge and with John Woodbridge, but denies the allegations of its receipt of moneys of the trust estate, and also the allegations of conversion or misappropriation by it, or with its permission, of any of the trust property. Upon the trial at the close of the evidence the defendant moved for a dismissal of the complaint on the ground that the plaintiff had not made out a cause of action, and thereupon the court made a decision in which it was-decided : ' ' “ That plaintiff has failed to prove that there has been any conversion or misappropriation of. any part of the trust estate by the defendant or the trustee Augustus Bodies, or by John Woodbridge or by any other person. “That plaintiff has failed to prove that defendant had knowledge of any wrongful use of the said trust .property, or of any intent to misappropriate any part thereof on the part of said trustees Augustus Bodies, or John Woodbridge or any other person. “ That the complaint should be dismissed upon the merits.” Judgment was directed accordingly, with costs. Appleton D. Palmer and C. Godfrey Patterson, for the appellant. Esek Cowen and John L. Henning, for the respondent. [MAJORITY — Merwin, J.:] Merwin, J.: The main contention of the appellant is that a case was made entitling the plaintiff to an interlocutory judgment requiring the defendant to account for all moneys belonging to the estate of Samuel Freeman, deceased, at any time received by the defendant. There was no contract relation' between the defendant and the estate such as would make it the duty of the defendant to account to the plaintiff. The cases, therefore, that are cited with reference to the duty to account where the relation of the parties is based on contract do not apply. The contract dealings here were between the defendant on the one part and Helen F. Woodbridge or John Woodbridge on the other. The relation was that of debtor and creditor. The duty of the defendant was to pay to the party depositing or to his or her order. It did so. John Woodbridge had authority to act for his wife. A bank, in the absence of' notice of an adverse claim, has the right to assume that the person who makes deposits to his own credit has the right to draw them out. A court of equity may order an accounting when a fiduciary relation exists between the parties and a duty rests on the defendant to render an account (3 Pom. Eq. Juris. § 1421); and this rule may be applicable in case of a constructive trust. (1 Story Eq. § 512.) The existence of such trust or the facts upon which it may arise1 by operation of law must be definitely shown before the right to recover, or to require an account, is established. John Woodbridge was> as the defendant knew, or is chargeable with knowing, the agent of the trustee.in the collection of the moneys of the estate. The plaintiff concedes that Woodbridge had the right to collect, but claims that he had no right to deposit his collections in the bank to his own credit. Assume this position to be correct, it would be incumbent on the plaintiff to show either that, all the deposits were estate moneys, or to show what deposits were such. It is not shown that all were moneys of the estate. On the contrary, it is shown that other moneys were deposited, and .the amount thereof that belonged to the estate is not shown. Because Woodbridge was, to defendant’s knowledge, agent of the trustee, and made some deposits, that consisted of trust moneys, it does not follow that the burden is on the defendant of showing what of the deposits belonged to the estate, or of showing, that the whole went for the benefit of the estate. It will hardly do to put upon a bank the burden of showing where its customer gets his deposits. The plaintiff, with the access to papers and records which she is supposed to have, should, in the first instance, show what deposits were estate moneys. This is done as to certain dividends or bank stock held by the estate in the defendant bank and in a Schenectady bank. Those dividends were a part of the annual income of the trust fund, and were less than the annuity payable to Mrs. Woodbridge. The defendant had a right to believe that such dividends were rightfully received by Mrs. Woodbridge or her husband, as her agent, to apply on her annuity, and, therefore, no misappropriation or negligence can be charged to the bank on that account. No other specific deposits are shown as coming from the trust estate. It is alleged that the individual debts of Hr. Woodbridge were paid from the estate funds. The evidence, to say the least, leaves that in doubt, but if there were such payments, the amount does not appear. • There is nothing in the evidence from which the trial court could properly say that the defendant must pay or account for any particular sum, or any particular item of property This is not the case of the management of an estate by a party having no right- to do so, or the case of the use of property, the profits from which may be reached, and for which a right to an accounting may exist. The question is whether the defendant has improperly allowed the moneys of the trust estate, known to be such, to be withdrawn from the bank, or has itself improperly received, to its own benefit, such moneys. The claim is, in its nature, tortious, and should be shown with reasonable pertainty. The deposits seem to have been made and paid out in the ordinary course of business, fr.om 1872 to 1891, without any adverse .claim until the commencement of this suit. It is not shown to what extent during this period the principal of the estate has been diminished. So far as the case shows, the defendant had the right to believe that the estate, though practically in the hands of John Woodbridge, was managed to the satisfaction of all parties up to the time of the resignation of the trustee in 1891.. It had a right to believe that whatever deposits of estate moneys were made by Woodbridge to the credit of his wife or himself, were so made with the assent of the trustee, and without any design on the part of either the trustee or of Woodbridge to misappropriate the same. , We are not persuaded that, upon the case presented, the plaintiff was entitled to an interlocutory judgment for an accounting. The trial court, in effect, found that no conversion or misappropriation by the defendant had been shown, or any negligence or improper conduct on its part in regard to any withdrawal of trust funds by Woodbridge from the bank. We find no good reason for disturbing this conclusion or the conclusion that a cause of action was not established. Upon the appeal from the order granting an extra allowance of costs, it is claimed by the plaintiff that there is no basis in the case for granting an allowance. The allowance must be based “ upon the sum recovered or claimed, or the value of the subject-matter involved.” (Code Giv. Proc. § 3253.) The plaintiff, in her complaint, asked judgment that the defendant he required to account and pay to the plaintiff all moneys of said estate found due upon such accounting, and for such other or further relief as might be proper. The argument is, that the subject-matter of the action is the right to an accounting, and that no money value can be placed upon that, and, therefore, there is no basis for an allowance. The subject-matter of the action was the deposits of trust moneys during, the period in controversy. Under the allegations of the complaint a recovery was possible to the full amount alle'ged. The amount or value of such deposits, however, was not proved except to1 the extent of about $30,000, being the dividends of certain banks. That sum, therefore, is to be deemed the value of the subject-matter involved. The order granted an extra allowance of $2,000. • This was larger than the facts of the case, as appearing from the papers on which the order was granted, warranted. It should be reduced to the sum of $1,000, and the order as so modified should be affirmed. All concurred, excépt Putnam, J., not sitting. Judgment affirmed, with costs. Order modified, by reducing the amount of the extra allowance to the sum of $1,000, and as so modified affirmed', without costs.