I concur in the disposition made of this case. The County not claiming under Cobb had a right to maintain this suit against the administrator of his estate. Red River County Bank v. Higgins, 72 Tex. 66, 9 S.W. 745; Schmitt, Administrator, v. Jacques, 26 Tex. Civ. App. 125, 62 S.W. 956, Wr. Den. In regard to the funds in question here it was not sought in the application for appointment of Temporary Administrator that the checks by which the fund in controversy was collected be taken possession of as assets of the estate of the deceased Cobb, but as the property of Dallas County. In my opinion under the order of appellant Reid's appointment he was not authorized to hold the fund as an asset of the estate. The order of his appointment provides:
"The temporary administrator shall immediately present these checks for payment to the bank on which they are drawn, obtain the proceeds of such checks and deposit same with the depository of Dallas County."
The Dallas National Bank was the depository of Dallas County on all relevant dates herein. The Dallas National Bank in its capacity as a depository was a public functionary. In another capacity it was a private banking house. I think it is too plain to justify discussion that whether proper or improper the order of the court was to deposit this money in the county depository to the credit of the county. In my opinion appellant breached this order when he deposited same to his own credit as Temporary Administrator in the bank, not in the bank as a county depository, but in the bank as a private institution. Courts do not ordinarily select where a fiduciary shall deposit funds which belong to the trust. If the funds belonged to Dallas County the proper functionary to hold same was the Dallas National Bank as county depository.
It is clearly reflected in the record, or in any event the finding is amply sustained thereby, that the $51,800 delivered to the Irving Bank by deceased's daughter was the identical fund held in trust by the deceased Cobb in his official capacity. It was certainly the legal duty of the estate of Cobb to account to the county for this $51,800. So long as same was held by the estate or a representative thereof it was a liability rather than an asset of the estate. The estate withholding the fund could have been held liable therefor; liable as a convertor thereof. Schmitt, Administrator, v. Jacques, supra.
It was a matter of vital concern that these funds be delivered to the owner thereof.
I concur in the affirming of the judgment. *Page 1015