Dr. C. R. MONROE
v.
Miriam Lucille DIETENHOFFER, Individually and as Executrix of the Estate of Herbert J. Dietenhoffer, Deceased, and Carolina Bank.
No. 544.
Supreme Court of North Carolina.
June 2, 1965.*137 Wilson, Bain & Bowen, Dunn, for plaintiff appellant.
Boyette & Brogden, Carthage, for defendant appellee Carolina Bank.
BOBBITT, Justice.
Plaintiff's allegations relate to: (1) his alleged claim against the estate of Dietenhoffer; (2) his alleged claim against Mrs. Dietenhoffer, individually, on account of her unlawful use of funds of the deceased; and (3) his alleged claim against Carolina Bank because (a) it honored checks, signed by (unauthorized) persons other than Dietenhoffer, drawn on funds on deposit to the credit of Dietenhoffer and of Dietenhoffer and Heartfield at the time of Dietenhoffer's death, and (b) it honored checks drawn on funds deposited in a special account, "Dietenhoffer and Heartfield," which was opened by Mrs. Dietenhoffer and in which deposits were made after the death of Dietenhoffer.
The complaint is subject to demurrer on the ground plaintiff "improperly united" several causes of action. G.S. § 1-127(5); G.S. § 1-123; Rule 20(2), Rules of Practice in the Supreme Court, 254 N.C. 783, 802; Heath v. Kirkman, 240 N.C. 303, 306, 82 S.E.2d 104; Tart v. Byrne, 243 N.C 409, 412, 90 S.E.2d 692; Bannister & Sons v. Williams, 261 N.C. 586, 588, 135 S.E.2d 572; Kearns v. Primm, 263 N.C. 423, 426, 139 S.E.2d 697. However, sustaining the *138 demurrer on this ground would be without prejudice to plaintiff's right under G.S. § 1-131 to move for leave to amend his complaint so as to state separately his alleged causes of action. On the other hand, if there is a misjoinder of parties and causes of action, the action as to Carolina Bank was properly dismissed. Kearns v. Primm, supra; Bannister & Sons v. Williams, supra, and cases cited; Vollers Co. v. Todd, 212 N.C. 677, 194 S.E. 84; Lucas & Lewis v. North Carolina Bank, 206 N.C. 909, 174 S.E. 301.
Plaintiff's alleged cause of action (claim for $1,640.00) against the estate of Dietenhoffer is based on what occurred prior to Dietenhoffer's death and is determinable as of the time thereof. It is based on Dietenhoffer's receipt of plaintiff's $1,640.00 and his failure, in breach of his contractual obligations, to purchase for and deliver to plaintiff one thousand shares of N. C. Telephone Company stock.
The alleged cause of action against Mrs. Dietenhoffer, individually, is based entirely on transactions alleged to have occurred after the death of Dietenhoffer on December 20, 1959, and before the qualification of Mrs. Dietenhoffer as executrix of his estate on February 9, 1960. The sole basis upon which Mrs. Dietenhoffer, in her capacity as executrix, may be considered a proper party to this alleged cause of action and to the alleged cause of action against Carolina Bank is the fact that any recovery would pass to the personal representative of Dietenhoffer's estate for administration in accordance with law, not to the plaintiff. Spivey v. Godfrey, 258 N.C. 676, 129 S.E.2d 253, and cases cited.
Before considering further the alleged causes of action against Mrs. Dietenhoffer, individually, and against Carolina Bank, it is noteworthy that the complaint is silent as to (1) whether plaintiff filed a claim against the estate of Dietenhoffer and, if so, whether it was allowed or denied, and (2) whether the executrix has made or purported to make a final settlement of Dietenhoffer's estate. Moreover, the complaint is silent as to what action, if any, plaintiff has taken to have Mrs. Dietenhoffer removed as executrix and to have a disinterested person appointed as personal representative in her stead.
Plaintiff's factual allegations are to the effect Mrs. Dietenhoffer, without authority, operated the business of Dietenhoffer and Heartfield from Dietenhoffer's death until her qualification as executrix on February 9, 1960, and during this period used funds ($14,109.80) constituting general assets of Dietenhoffer's estate to prefer certain creditors and to prejudice other creditors, including plaintiff, of the same class, and paid $3,491.59 to other unsecured creditors of Dietenhoffer's estate. These alleged facts are deemed sufficient to state a cause of action against Mrs. Dietenhoffer (for an undetermined amount) in behalf of the personal representative of Dietenhoffer's estate, for the benefit of creditors, including plaintiff, prejudiced by her tortious intermeddling and misapplication of assets of Dietenhoffer's estate.
Plaintiff alleges Carolina Bank had full knowledge that Dietenhoffer, at the time of his death on December 20, 1959, was the sole owner of the funds theretofore deposited in the bank in the account and to the credit of Dietenhoffer and Heartfield; and thereafter, with full knowledge of Dietenhoffer's death, honored checks against said account signed by (unauthorized) persons other than Dietenhoffer. There is no allegation as to the balance in said account when Dietenhoffer died or as to the number, amounts, payees, etc., of the checks so honored.
On said alleged facts, Carolina Bank was obligated to Dietenhoffer, its depositor, when he died, in an unstated amount. The relationship theretofore subsisting was that of debtor and creditor. Lipe v. Guilford Nat. Bank, 236 N.C. 328, 72 S.E.2d 759. Upon Dietenhoffer's death, *139 the title to said account vested in his personal representative for collection and administration. G.S. § 28-172; Coastal Sales Co. v. Weston, 245 N.C. 621, 627, 97 S.E.2d 267; Spivey v. Godfrey, supra. "Then bank is bound to see that payment of the deposit of a deceased depositor is made to his duly appointed legal representative." 9 C.J.S. Banks and Banking § 1004. Ordinarily, a bank's contractual obligation to its deceased depositor can be discharged only by payment to his personal representative. Sides v. Citizens National Bank, 246 N.C. 672, 674, 100 S.E.2d 67. Hence, upon the facts alleged by plaintiff, whatever payments were made by Carolina Bank with reference to the balance on deposit to the credit of Dietenhoffer at the time of his death did not discharge the bank's liability to Dietenhoffer's personal representative for the amount thereof. These alleged facts are deemed sufficient to state a cause of action against Carolina Bank (for an undetermined amount) in behalf of the personal representative of Dietenhoffer's estate, for the benefit of creditors, including plaintiff. This cause of action against Carolina Bank is the identical cause of action that existed in favor of the personal representative of Dietenhoffer's estate as of the time of Dietenhoffer's death. In this connection, it is noted that plaintiff does not allege that Mrs. Dietenhoffer was the drawer of any of the unauthorized checks on said account.
With reference to the alleged special account in the name of "Dietenhoffer and Heartfield," opened by Mrs. Dietenhoffer after Dietenhoffer's death, plaintiff alleges Carolina Bank honored checks drawn on this account by Mrs. Dietenhoffer. There is no allegation as to the amount deposited in said special account or as to the number, amounts, payees, etc., of the checks so honored. Under plaintiff's allegations, the status of this special account and the nature of transactions in connection therewith are unclear. However, the basis of the cause of action, if any, stated in connection therewith, is that the funds deposited therein were assets of Dietenhoffer's estate and that the bank is now liable to Dietenhoffer's estate for the amount thereof.
While the complaint alleges the bank "carelessly and negligently" honored unauthorized checks, plaintiff's alleged cause of action against the bank is based on its contractual obligations. Under the facts alleged, the bank, if liable to the estate of Dietenhoffer for the amount of said deposits, is the only party to suffer loss if, through carelessness and negligence, it paid to unauthorized persons amounts due the personal representative of Dietenhoffer's estate.
G.S. § 1-123, in part, provides: "The plaintiff may unite in the same complaint several causes of action, of legal or equitable nature, or both, where they all arise out of1. The same transaction, or transaction connected with the same subject of action." The words and phrases used in G.S. § 1-123(1) are defined by Barnhill J. (later C. J.), in Hancammon v. Carr, 229 N.C. 52, 47 S.E.2d 614.
The conclusion reached is that Mrs. Dietenhoffer, individually, is not a necessary or proper party to plaintiff's alleged cause of action against Carolina Bank; that plaintiff's alleged cause of action against Carolina Bank based on its contractual obligations is separate and distinct from plaintiff's alleged cause of action against Mrs. Dietenhoffer for tortious intermeddling and misapplication of general assets of Dietenhoffer's estate; that the facts alleged do not support plaintiff's allegation as to joint and several liability in the amount of $17,601.39; and that each cause of action rests on different legal principles. Hence, there was a misjoinder of parties and causes of action; and the judgment, sustaining the bank's demurrer and dismissing the action as to it, is affirmed.
Affirmed.