Los Angeles herald., 1892-08-03
AN INrERvENoR BARRED.
The Case of Wharterby Against the First
National Bank.

II
National Bank.
Judge Clark yesterday filed an i'm
portsnt opinion in the case of VIM.
Whartenby against the First National
bank, in which the intervenor is barred.
The opinion is as follows:
Suit is brought by plaintiffs as dis
tributes in the matter of the estate of
James Whartenby, deceased, to recov er
the sum of $94l.66, deposited with de-
fendant corporation. E. F. Spence in
tervenes and claims to be the owner of
said fund, or at least a portion ther reof,
namely, the sum of $62806. The facts
are that said defendant in his lifetime
entered into contract with said inter-
venor, by which the latter was to make
Investments for the former and to re-
ceive as compensation per cent Of all
interest collected thereon. During the
pendency of this contract there was
collected as interests upon Investments
made by intervenor for defendant the
sum of $32,71727, and intervenor's
commissions would therefore amount to
$1635S6, of which the SUM of $1007. 80
has been paid. In carrying out this
contract intervenor placed all money
received for and from investments on
deposit with defendant bank, in the
name of the said James Whartenby and
this account was checked against by
both decedent and intervenor, but
when by the intervenor, the checks
were signed James Whartenby by E. F.
Spence. Upon the death of the said
James Whartenby probate proceedings
were regularly had upon his estate
and notice to creditors was regularly
given, as required by sections 1490 and
1491, @. G. p, but intervenor failed to
present his claim against said estate.
Intervenor's counsel now contends that
as legal proposition these facts show
said funds to be still in the possession
of intefvenor; that as between the bank
and the intervenor the latter is the
owner thereof; that he is debtor and
not a creditor of the said estate, and
that it was not therefore necessary to
present any claim against said estate.
Admitting, without deciding, that where
there are mutual debts and credits, it is
unnecessary for creditor to present
his claim, if the balance be against him,
which question would seem to be in
doubt [see estate of Hildebrant,
2S Pacific Reports, 1851, am
still of opinion that intervenor's posi-
tion cannot be maintained. To my
mind the argument OF plaintiff is con-
elusive. The depositing of the money
in the bank by the intervenor in the
name of his principal, and with his con-
sent, was delivery to the principal.
BY the deposit the relation of debtor
and creditor was established between
the bank and the decedent, and not be-
tween the bank and the intervenor.
The facts that the intervenor checked
against the account and the checks
were honored that he was president of
the bank, and instructed its officers to
pay no check against said account with
out first obtaining his approval, are not
material and cannot affect the rule.
The rule is the same that it would be
had the deposit been made in a bank
with which intervenor was not
connected, and it would seem
clear that had decedent drawn
against said account. the defendant cor
poration would have been legally obli
gated to pay the draft, whether approved
by it's president or not, and had the ac-
count, by reason of the insolvency of
the bank, or for any reason, become
worthless, the loss would have been the
loss of decedent and not of intervenor.
am of the opinion that intervenor
stands in the position of creditor of the
estate, and not the owner or possessor
of said fund, and that having failed to
present his claim, as required by @. G.
p, Sec. 1893, etc., it is barred. Find
ings are ordered accordingly.