The record in this case shows that the Receiver of the Bank of Coconut Grove and the appellant, both made claim to the funds of the Bank of Coconut Grove which were on deposit to the credit of the Bank of Coconut Grove with the National Bank of Commerce of New York; that after the bank of Coconut Grove closed that the fund was not immediately paid over to the Receiver but remained in the National Bank of Commerce until pursuant to a stipulation between the parties to this case, such fund was brought to Miami and placed in a special deposit in another bank, to be held in a special fund in said bank until the claim of Mrs. Bryan to priority had been determined.
The record also shows that at the time the Bank of Coconut Grove closed it had "in cash in said Bank of Coconut Grove the sum of $15,000.00 in addition to the amount to the credit of said bank in New York City". The amount of the check in question was $14,420.00 and the record shows it was drawn to the order of Mary Baird Bryan, administratrix, against funds at that time in the National Bank of Commerce of New York, and that said check was marked "paid" and the account of the drawee, Mary Baird Bryan, Administratrix, at the Bank of Coconut Grove, accordingly debited, and the draft on New York credited to said New York bank and charged accordingly upon the books of the closed bank of Coconut Grove, by such amount, before the bank closed. *Page 967 The record further shows that altho the draft or check was presented and marked "paid", before payment could actually be made, notice was received by the New York bank of the closing of the bank of Coconut Grove, whereupon no payment in fact was made by the New York Bank, until pursuant to the stipulation just referred to.
There is nothing in the opinion, when construed in connection with the facts of the case, as we have held must be done when interpreting judicial opinions, which holds that this court has departed from the generally recognized rule established by its previous decisions, to the effect that trust deposits are not payable out of the general assets of the bank, unless separately and specifically traced into a separate and specific fund or asset coming into hands of the receiver or liquidator, and that such trust funds only have preference out of the lowest cash balance in the bank at the time it closed, and general dividends for the remainder, in the absence of such tracing, which can be accomplished in many different ways.
Neither has this court in its opinion in this case undertaken to over-rule or change its previously established holdings to the effect that where the lowest cash balance is insufficient to pay all trust claimants in full, that then they take ratably out of the lowest cash balance with general dividends for the remainder.
The petition for a re-hearing therefore is denied.
BUFORD, C.J., AND WHITFIELD, ELLIS, TERRELL, BROWN, AND DAVIS, J.J., concur.