I concur in the result of the opinion of the Chief Justice in this case, but I desire to emphasize my view of one phase of the main question involved in the appeal.
It is possible, indeed probable, that the opinion of this Court in the case of In Re Willcox (Ellis' Estate v. Brown),162 S.C. 133, 160 S.E., 260, may have led Judges of Probate and the fiduciaries named in Section 9050, Code 1932, to the erroneous conclusion that the approval therein required of the Judge of Probate of deposits in banks of funds in the hands of such fiduciaries might be had after, as well as before such deposits are made, and that such fiduciaries are relieved of liability for funds lost by the failure of the depository banks, by the approval of the Probate Judge obtained subsequent to the deposit. Such is not our construction of the Act of 1920 now embraced in the Code of 1932 as Section 9050. We think it is the intent of the Act that the approval be had before the deposit is made. The duty devolved upon the Judge of Probate in the premises is not a perfunctory one. He is expected to examine into and satisfy himself of the financial condition of the bank *Page 177 in which it is proposed to place the estate funds: otherwise the requirement of approval by him is an idle gesture, and adds nothing to the safety and security of trust funds. If the approval may be given after the deposit is made, then it may be given after loss has occurred through the failure of the bank. Such a construction might, and probably would, lead to abuse.
The approval of the deposits in the present case was made in accordance with the apparent intent of the opinion of this Court in the Ellis case, supra, and is therefore affirmed. But the Court deems it an opportune time to notify Judges of Probate and the classes of fiduciaries named in Section 9050 that its construction of that section is that the approval of Judges of Probate therein required must be obtained before deposits of funds are made; if not so had, and loss ensues through the failure of the bank, fiduciaries will be liable.
Appellant by Exception 2 charges error to the Probate Judge and the Circuit Judge for that they hold that the appellant made no objection to, nor criticism of, the action of the committee of the person non compos mentis, in depositing the funds of the estate in banks without having obtained the prior approval of the Judge of Probate; whereas the evidence shows that the appellant did object, by letters and verbally.
Unfortunately for appellant's contention, the evidence does not appear in the transcript of record upon which the case is submitted to the Court, and it is the settled rule of this Court that statements of facts which do not appear in the record may not be considered.
MR. JUSTICE STABLER concurs. *Page 178