Zachery v. . Hood, Comr. of Banks , 205 N.C. 194 ( 1933 )

This is an action to have plaintiff's claim against the Central Bank and Trust Company of Asheville, N.C. adjudged a preferred claim upon the assets of said Bank and Trust Company, which are now in the possession of the defendant, Commissioner of Banks, for liquidation because of the insolvency of the said Central Bank and Trust Company.

The plaintiff, Frances H. Zachery, is the wife of Robert Y. Zachery, Jr., who abandoned the plaintiff and their two minor children some time prior to 1 May, 1927. After his abandonment of her, the plaintiff instituted an action in the Superior Court of Buncombe County against her said husband to have a reasonable subsistence and counsel fees allotted and paid or secured to be paid to her from the estate or earnings of her said husband, who had become a nonresident of the State of North Carolina. Summons in said action was served on the said Robert Y. Zachery, Jr., by publication as authorized by statute. An attachment was levied in said action on a sum of money then on deposit with the Central Bank and Trust Company in the name of Ethel Lee Murray, executrix of Robert Y. Zachery, Sr., deceased, the father of the said Robert Y. Zachery, Jr. The said sum of money was the property of the said Robert Y. Zachery, Jr., and amounted to about $7,000.

At May Term, 1927, of the Superior Court of Buncombe County, a judgment was rendered in said action in which the defendant therein, the said Robert Y. Zachery, Jr., was ordered to pay to the plaintiff therein, Frances H. Zachery, certain sums of money for the subsistence of herself and her minor children. It was further ordered in said judgment that the Central Bank and Trust Company hold the sum of money then on deposit with the said Bank and Trust Company, in the name of Ethel Lee Murray, executrix, and from time to time, as ordered by the court, to pay out of said deposit sums of money to the plaintiff for the subsistence of herself and her minor children. Both Ethel Lee Murray, executrix, and the Central Bank and Trust Company were parties to said action. After the rendition of said judgment and until its insolvency on 19 November, 1930, the Central Bank and Trust Company in compliance with the orders of the court paid to the plaintiff various sums of money, leaving the balance due on said deposit on 19 November, 1930, $1,992.12. At said date, the Central Bank and Trust Company had in its possession the sum of $36,000, in money, and other assets, all of which came into the possession of the defendant, Commissioner of Banks, for liquidation.

On the foregoing facts found by the court, without objection, it was ordered, considered and adjudged that plaintiff's claim against the Central Bank and Trust Company, for the sum of $1,992.12, with interest from 19 November, 1930, is a preferred claim upon the assets of said Bank and Trust Company, and, together with the costs of this action, should be paid as such by the defendant, Commissioner of Banks, out of said assets which are now in his possession.

The defendant excepted to the judgment and appealed therefrom to the Supreme Court. On 19 November, 1930, when the Central Bank and Trust Company closed its doors and ceased to do business, because of its insolvency, the sum of $1,992.12, then on deposit with the said Bank and Trust Company, pursuant to the judgment of the Superior Court of Buncombe County, in the action entitled, "Frances H. Zachery v. Robert Y. Zachery, Jr., and others," was a special deposit, or a deposit for a specific purpose. Parker v. Trust Co.,202 N.C. 230, 162 S.E. 564; Corp. Com. v. Trust Co., 193 N.C. 696,138 S.E. 22. The fact that prior to the attachment and the judgment in said action, the deposit then in said Bank and Trust Company, in the name of Ethel Lee Murray, executrix, was a general deposit, subject to her check, does not determine the character of said deposit, after the rendition of the judgment, for thereafter the deposit was not subject to the check of Ethel Lee Murray, executrix, but was held by the said Bank and Trust Company subject to the orders of the court, for a specific purpose. At the date of the insolvency of the Central Bank and Trust Company, the said deposit, then amounting to $1,992.12, was impressed with a trust which entitles the plaintiff, the cestui que trust, to a preference over the general creditors of said Bank and Trust Company. Flack v. Hood, Comr.,204 N.C. 337, 168 S.E. 520. There is no error in the judgment.

Affirmed.