The admission "that the money deposited was the money of W.A. Bright, and that the bank, at the time of taking the deposit, knew it was his," and the absence of any contention that there was a transfer or delivery of the certificate for value during the life of W.A. Bright, would seem clearly to charge the bank with knowledge that J.G. Bright, the alternative payee, had no enforceable claim to the deposit for the reasons: (1) That the supposed agreement as to him was without valuable consideration; (2) that the deposit was not a gift, the depositor retaining the right himself to withdraw it; (3) that it was not a trust in that no present right was transferred; and (4) that it was not a valid testamentary disposition in that it lacked the essentials of a will. L.R.A., 1917C, 550; Sawyer v. Mabus, 107 S.C. 369;92 S.E., 1029. If J.G. Bright, the alternative payee, had no enforceable right to compel payment, did the bank have a legal right to pay W.A. Bright's money after his death to one who had no title to or interest in the fund, by virtue of its agreement, evidenced by the certificate, to pay to either of the two named payees? *Page 103
While the acceptance of a deposit creates the relationship of debtor and creditor, there is always the superadded obligation on the bank's part to ascertain that payment is made to the proper person. 7 C.J., 650, § 343; Wolfe v.Bank of Anderson (S.C.), 116 S.E., 451, October term, 1922. The bank's contract to pay W.A. Bright's money to W.A. Bright or to J.G. Bright was of necessity predicated upon authority conferred by W.A. Bright so to pay. That authority conferred no power, coupled with an interest, upon J.G. Bright, since admittedly he had no interest in the fund itself (Johnson v. Johnson, 27 S.C. 309; 3 S.E., 606; 13 Am. St. Rep., 636), nor did it confer a power, coupled with an interest, upon the bank, for the same reason. When W. A. Bright died, the authority by virtue of which it had agreed to pay his money to another died with him. Such seems to have been the conclusion of the Maryland Court in a practically identical case. Second National Bank of Baltimorev. Wrightson, 63 Md., 81. Let us assume that the money here involved had been deposited in the name of the owner, W.A. Bright, and that prior to his death he had given the bank written authority to pay it to J.G. Bright upon or after his (the owner's) death. Upon compliance with that written order, would the bank have been absolved from liability to the legal representatives of W.A. Bright's estate? Clearly not, I think, for the obvious reason that it would then have paid out the money to one not clothed in due form of law with authority to collect and administer the decedent's estate. See Sullivan v. Sullivan,161 N.Y., 554; 56 N.E., 116. I cannot perceive how the certificate of deposit, under the admitted facts of the case at bar, amounted to more than an agreement on the bank's part to comply with the verbal authority conferred by W.A. Bright to pay his money to another who had no enforceable interest in it. If so, the bank's mere correlative agreement cannot of itself keep the power so conferred alive; it died with the donor. *Page 104
For the reasons stated, I concur in the opinion of MR. JUSTICE FRASER.