The Helena independent. [volume] (Helena, Mont.) 1875-1943, 1890-10-11
TO THE ESTATE.
The First National Bank Of Billings
III Must Restore the
Money.
The Story Of q Power Of Attorney
Given to tho 1nsti-
tuition.
Notes In the Bank Which Its Cashier Un-
dertook to Pay From the Max
ers' Deposits.

A case was decided against the First
National bank of Billings, yesterday in the
supreme court which is of interest to
bankers and their customers. The action
was commenced in the district court at
Billings by Ben. D. Gardner, administrator
of the estate of J. w. Story, on the follow
ing agreed statement of facts.
On August IL, 1887, Story and one jack
son, made joint note to the First National
bank of Billings for 81, 900 and also note to
oneSeverance for 81 200 eachifor sixty DAYS.
On these notes Story borrowed $2,2OO from
the bank. At the time of the loan Story
stated to the bank that he would send to
them from time to time deposits to meet
the notes, and instructed the bank that
they might apply such deposits toward the
payment of the notes, and that they might
be SO applied before the maturity of the
notes if the bank desired. The notes drew
interest at the rate of one and one-quarter
per cent. per month and the deposits drew
interest. On September u, 1887, Story
died and on the 18th Gardner became the
administrator of his estate. On the day of
his death Story had deposited with the
bank 81, 161.68, and which had not been APP
piled by the bank to the payment of the
notes. Prior to September II, 1887. the
bank had notice of Story's death. On that
day the cashier of the bank on check
signed for Story, by himself, drew the money
on deposit and applied it to the payment Of
the notes, and this before the notes were
due. On October IA, 1887, the administrator
from the bank the money, which
was refused. The pleadings in the case
were hled after the notes became due. and
the bank has never presented the notes to
the administrator for allowance. The adj
sued the bank for 81, 161.6s, the
amount Of money on deposit with the
bank at the time of Story's death. The
bank denied the indebtedness. and it's de
Tense was its application of the money upon
the notes in pursuance to the instructions
OF the deceased in his life time.
The opinion is by Judge Dewitt, the chief
justice concurring. Judge HARDWOOD, who
was of counsel in the trial of the case in the
lower court, was not on the bench. The
decision says that Story. while alive,
gave authority to apply his de
posa 70 the t,a Of the
desired. This was the creation of an
agency, or power of attorney-a power
which was never exercised during tho life
of Story or prior to the knowledge of the
bank of Story's death. After that, aud
notice to the bank thereof, the power was
eAeECAeeu, OI Ino agency aCC0O upon anu inc
deposit applied. There is no question of
consideration or contract or rights of inno-
cent purchasers without notice involved in
the construction of the conduct of the bank
in attempting to act under this agency or
power. Nor was the power coupled with
interest. The interest to be coupled with
power, which will cause the power to sur
vive the death of it's grantor, must be an
interest or title in the thing, which interest
or title is conveyed with the power and not
left to be conveyed afterwards with the ex-
ercise of the power. 1t must pass with the
power and then vests in the grantee
OF the power. Such ia not
the situation in the transaction
under review. No title in the money vested
in the bank with the passing to it of the
power. No title could be in the bank until
the power was exercised. The subject of
the power coupled with an interest ia not
one free from difficulty; but that the power
under consideration was not coupled with
such an interest as secured its validity after
Story's death 10 amply apparent upon a
careful study. Hence The court con
naked max, power to apply Or rather
TO elect to apply and apply the money
to the notes. The power was not exercised
IN the life Of its Rrantor and persisted with
his death. The acts of the bank in apply
Ing these deposits was without security.
The money belongs to the estate of Story,
The Judgment is reversed and the case re-
manded to the district court with instruo-
tions to enter judgment in accordance with
the views OF the supreme court.