Paul L. Gray, as Administrator with the will annexed of the Estate of Irad Wilson Gray, filed a claim with the receiver of the Platte County State Bank, an insolvent bank, in the sum of $1572.30, asking to be made a preferred creditor. The court allowed the claim as a general claim, but denied the preference, and from this judgment the administrator appealed. Rachel E. Gray has, by agreement of parties, been substituted as appellant herein. A few days prior to February 13, 1923, Paul L. Gray delivered to the bank aforesaid, for collection, a note and mortgage owned by him as administrator, and made by one Nordstrom and wife. The note and mortgage was collected by said bank on February 13, 1923. On February 16, 1923, the bank became insolvent and went into the hands of a receiver. The administrator claims that the note and mortgage aforesaid was delivered to said bank upon condition to collect the same and pay the proceeds over to Rachel E. Gray, the widow of Irad Wilson Gray, and sole legatee and devisee under the last will and testament of said deceased. There is testimony in the record to sustain that claim. Two witnesses for respondent, on the other hand, positively testified that the note and mortgage aforesaid was in fact delivered to the bank with the understanding that the proceeds thereof should be credited to the account of Paul L. Gray, as a general depositor, after deducting therefrom a small amount which had been loaned to him by the bank. The administrator aforesaid never carried an account in said bank as such, but he had an individual *Page 365 account therein during the year 1922. On January 2, 1923, he checked out the balance of $61.88, and the account was left without any funds between that date and February 13, 1923, when the proceeds of the loan aforesaid were credited to him. Various loans had been collected by the bank for him prior to February 13, 1923. The proceeds thereof had been checked out, most of it having been paid upon his individual check to Rachel E. Gray. Sometime after the bank failed, Rachel E. Gray presented to the receiver a check made by Paul L. Gray individually, covering the amount of the Nordstrom loan, but payment of the check was refused by the receiver.
The finding of the trial court, implied in its general finding, that the note was not delivered to the bank upon the condition claimed by the administrator, appears to be supported by substantial evidence, and we must accept the court's conclusion that the deposit made in the bank was a general and not a special deposit, unless the facts mentioned directly make it different. We may further assume as true, for the purposes of this case, that the bank was chargeable with knowledge of the fact that the Nordstrom note belonged to Gray as administrator and not in his individual capacity, and the case may be treated, under the facts shown, as if the deposit had been made in the name of Paul L. Gray, as administrator. Paul v. Draper, 158 Mo. 197, 59 S.W. 77, 81 Am. St. Rep. 296. It seems to be the theory and claim of counsel for appellant that in such a situation the bank became a trustee of the funds and that the right of preference exists. But we do not think so. Counsel for appellant seems to have overlooked the fact in his brief, judging from the character of most of the cases cited by him, that to have a claim against a bank is one thing, and to have a preferred claim is another. There are but two kinds of deposits, special and general — those where the bank becomes a trustee for a depositor by special agreement or under circumstances sufficient to create a trust, and general *Page 366 deposits where the bank merely becomes the debtor of the depositor. In the case of City of Sturgis v. Mead County, 38 S. Dak. 317, 161 N.W. 327, the court said:
"As a rule, when money is deposited in a bank, title to such money passes to the bank. The bank becomes the debtor of the depositor to the extent of the deposit, and to that extent the depositor becomes the creditor of the bank. * * * Such deposit then constitutes a part of the assets of the bank and in case of insolvency belongs to the creditors of the bank in proporition of the amount of their respective claims. Exceptions to this rule are, first, where money or other thing is deposited with the understanding that that particular money or thing is to be returned to the depositor; second, where the money or thing deposited is to be used for a specific designated purpose; and third, if the deposit itself was wrongful or unlawful."
The same language was used in the case of Kies v. Wilkinson,101 Wash. 340, 172 P. 351, 353. Under the finding of the court, neither the first or the second exceptions apply, and no statute and no facts have been pointed out making it unlawful for the administrator in this case to deposit the money in the bank. The mere fact that a depositor makes a deposit in a fiduciary rather than individual capacity, does not make the deposit a special one. 3 R.C.L. 518. The question is not what relation he or his fund bears to some third party, but rather whether a trust relation has been created between the bank and the depositor in connection with the fund. In order to make a deposit a special one, the bank must be made an agent, rather than a debtor, and its agency or trusteeship cannot be created by mere external relationship of the debtor, unless, perchance, the law forbids the bank from becoming a debtor in such case. If the claim of counsel for appellant were correct, every person who would make a deposit as agent, thereby charging the bank with knowledge of the agency, would have the right to *Page 367 have his deposit treated as special, giving him a preference right in case of the insolvency of the bank. With few exceptions, courts have held against such contention, and have treated a deposit made by an administrator or executor in a manner similar to that found herein by the trial court, as a general and not a special deposit. Pethybridge v. Bank, 75 Mont. 173, 243 P. 569, and cases cited; Thompson v. State Bank,76 Colo. 20, 227 P. 827; 37 A.L.R. 115; Officer v. Officer, 120 Iowa 389,94 N.W. 947, 98 Am. St. Rep. 365; Paul v. Draper, 158 Mo. 197, 59 S.W. 77, 81 Am. St. Rep. 296; Valentine v. Duke, 128 Wash. 128, 222 P. 494; Leach v. Beazley, 201 Iowa 337, 207 N.W. 374; Fletcher v. Sharpe, 108 Ind. 276,9 N.E. 142. The foregoing cases involved deposits made by an administrator or executor, but the same principle has been applied in many other cases where a similar trust relation existed. City of Sturgis v. Bank, supra; Kies v. Wilkinson, supra; In Re Nichols, (D.C.) 166 Fed. 603; Hansen v. Rousch, 139 Iowa 58, 116 N.W. 1061; Brown v. Sheldon State Bank, 139 Iowa 83, 117 N.W. 289; Smith v. Arnold,165 Ky. 214, 176 S.W. 983; Butcher v. Butler, 134 Mo. App. 61, 114 S.W. 564; Philip v. Bank, 98 Kan. 383, 158 P. 23; L.R.A. 1917 A, 680; Incorporated Town of Conway v. Conway, 190 Iowa 563, 180 N.W. 677; Cox v. Bank and Trust Co., 41 Idaho 776, 242 P. 785; William R. Compton Co. v. Farmers Trust Co. of Grant City, (Mo.App.) 279 S.W. 746; Rainwater v. Davis, (Ark.) 289 S.W. 471; 3 R.C.L. 518; 7 C.J. 633.
It follows from what we have said that the judgment of the District Court must be affirmed, and it is so ordered.
Affirmed.
POTTER, J., and KIMBALL, J., concur. *Page 368