* Headnote 1. Trusts, 39 Cyc., p. 446. John M. Miller, trustee, appeals from an order of the circuit court dismissing his suit against the Bank of Holly Springs, in which appellant sought to recover for the value of United States war savings stamps in the value of five hundred dollars, which he claimed he had deposited *Page 535 with the appellee bank, and which were not returned to him because the vault was burglarized and the stamps stolen therefrom.
The case is identical with the case of John M. Miller v.Bank of Holly Springs, 131 Miss. 55, 95 So. 129, 31 A.L.R. 698, except that Miller was suing in his own right in that case, while here he was suing as trustee for Elizabeth Tucker, a minor, who owned the stamps which were intrusted to him and were deposited by him in the bank for safekeeping.
The present suit was peremptorily dismissed upon the ground that appellant, Miller, had no legal right to bring the suit for the recovery of the stamps for the minor, Elizabeth Tucker, because he had not qualified as executor and trustee under the provisions of the will of the father of the minor, who bequeathed the property to her, and it is contended by the appellant that the court was in error in dismissing the suit.
We think, under the terms of the will, the appellant, John M. Miller, was authorized to bring the suit as trustee for the minor. The will did not require that Miller qualify in any way in order to act as trustee, but the provision appointing him as executor, which might necessarily require him to qualify as such, also designated him as trustee, and when he accepted the trust, and entered upon the duties of trustee, he became the trustee, with authority to act for the minor, and had the right to bring this suit to recover the stamps, the property of the minor, which he, acting in fact as trustee, had deposited in the bank for safe-keeping.
We do not think the appellee bank is in a position to question the authority of appellant to recover the stamps, since it was responsible to appellant to account for the stamps, which it had accepted from him for safe-keeping. In our opinion, Miller was ade jure trustee under the will, and the appellee bank was responsible to him for the deposit of the stamps and he must account to the minor for them. A recovery by him as trustee would bar *Page 536 any right of the minor to recover for the stamps in any subsequent proceeding.
Therefore the judgment of the lower court is reversed, and the case remanded.
Reversed and remanded.