Opinion
No. 30963.
February 5, 1934.
1. BANKS AND BANKING.
Double liability of voluntary stockholder in bank remains unenforceable until bank goes into liquidation and it reasonably appears that assets will be insufficient to pay depositors.
2. EXECUTORS AND ADMINISTRATORS.
Probating demand for stockholder's liability held not necessary where stockholder died before closing of bank, since liability had not then ripened into claim.
ON SUGGESTION OF ERROR. (Division B. March 19, 1934.) [153 So. 389. No. 30963.]EXECUTORS AND ADMINISTRATORS.
Claim against estate of deceased stockholder in insolvent bank, for personal liability filed and marked "probated" by clerk, held not void because lost or mislaid by clerk (Code 1930, section 1671).
APPEAL from Chancery Court of Prentiss County.
E.C. Sharp, of Jackson, for appellants.
The only material difference between our statutes pertaining to stockholders' liability and that of the national law on the same subject is that, under the Mississippi statutes the proceeds collected from stockholders' liability is a trust fund for the benefit of the depositors, while under the national law it is for the benefit of the creditors. Therefore, we contend that the same procedure should be followed in the enforcement of the stockholders' liability in state banks in Mississippi as is required by national banks.
In the case of Kennedy v. Gibson, 8 Wall. 498, 19 L.Ed. 476, the Supreme Court of the United States held that the determination of the comptroller as to the necessity of instituting proceedings against the stockholders to enforce their personal liability and as to the amount to be collected is indispensable, and must precede the institution of the suit by the receiver.
Gerner v. Thompson, 74 Fed. 125; Page v. Jones, 7 F.2d 541, 46 Sup. Ct. 203, 269 U.S. 587; King v. Pomeroy, 121 Fed. 287, 58 C.C.A. 209.
The bill in this case does not allege, and the proof does not show, that either Mr. or Mrs. Whitesides ever received from the estate of A.W. Whitesides, assets in the amount of one thousand five hundred dollars each, or any other substantial amount, but, on the contrary, it does show that each of them refused to permit this stock to be transferred to them, and that they received little, if anything, of value from this estate.
Austin v. Strong, 117 Tex. 263[ 117 Tex. 263], 1 S.W.2d 872, 79 A.L.R. 1528; In re Bingham, 27 N.E. 1055.
Appellants contend that no evidence should have been permitted as to the liability of Mrs. W.R. Whitesides because of the failure to strictly follow the statute in regard to probation of claim, and because the proof fails to disclose that said claim was probated and allowed as required by law.
Section 1671, Code of 1930; Stevens v. Dunlap Co., 108 Miss. 690, 67 So. 160; Walker v. Nelson, 87 Miss. 268, 39 So. 809; Horne v. McAlpine, 101 Miss. 129, 57 So. 420; Jennings v. Lowry, 147 Miss. 673, 112 So. 692; McWhorter v. Donald, 39 Miss. 779; Cheairs v. Cheairs, 81 Miss. 662, 33 So. 414; Lehman v. Powe, 95 Miss. 446, 49 So. 622.
This claim not having been probated in the manner provided by law, or if probated, not permitted to remain with the clerk, and there being no proof in the record to show that it was properly sworn to before an officer authorized to administer oaths and filed with the papers in the case as required by law, should have been disallowed, and no decree entered against the estate of Mrs. Whitesides for any part of the claim so attempted to be probated.
Persons v. Griffin, 112 Miss. 643, 73 So. 624; Jennings et al. v. Lowry Berry, 147 Miss. 673, 112 So. 692; Merchants Mfg. Bank of Ellisville v. Fox, 147 So. 789.
The exact question as to when the liability in cases of this character accrues has never, so far as we have been able to ascertain, been definitely passed upon by this court.
Board of Bank Examiners v. Grenada Bank, 135 Miss. 242, 99 So. 903; Pate v. Bank of Newton, 116 Miss. 666, 77 So. 601; Gift v. Love, 144 So. 562, 164 Miss. 442.
In the present case, as to the Sanders estate, if the liability accrued "when the bank became insolvent and closed," as stated in the Gift case, then the claim was properly probatable, and the questions to be decided, as we view the record, are, whether or not a judgment can be rendered against the administrator of this estate for the full amount of stock liability without the complainant having first shown that there was in his hands a sufficient amount to satisfy the decree, and we contend that under the statute a decree could only be rendered against him as administrator of this estate for the amount proven to be in his hands at the time of the rendition of the decree, and inasmuch as there is no proof to show this amount, or any other amount, in his hands at that time, the decree should be reversed. Carothers is entitled to be subrogated to the other assets of the bank for the payment of the money which he has advanced.
Love, Superintendent of Banks v. Robinson, 137 So. 499.
Flowers, Brown Hester, of Jackson, and C.R. Bolton, of Tupelo, for appellee.
Section 3815, Code of 1930, imposes the double liability on stockholders. There is nothing in this statute that provides that the superintendent of banks must first have adjudicated the insolvency of the bank before bringing suit to collect double liability. The only prerequisite is that the bank must be in process of liquidation.
Pate v. Bank of Newton, 77 So. 601.
While the registered stockholders may be held liable to creditors regardless of the true ownership of the stock, and the pledgee of the stock, not appearing otherwise, is not liable, although the registered stockholder may be an irresponsible person of his choice, yet, where the real ownership of the stock is in one, his liability may be established, notwithstanding the registered ownership is in the name of a person, fictitious or otherwise, who holds for him.
Ohio Valley National Bank v. Hulitt, 51 L.Ed. 423; 3 R.C.L. 401; Pauley v. Los Angeles State Loan Trust Co., 41 L.Ed. 844.
The widow and heirs of a shareholder in a national bank, to whom the probate court allotted the shares of stock in division, in proportion to their interest in the estate, but who let the stock stand in the name of the deceased, without any notice of their title to it are liable, under U.S. Revised Statutes, secs. 5139, 5151, 5152, to assessments on the stock in case the bank subsequently becomes insolvent.
Matterson v. Dent, 176 U.S. 521, 44 L.Ed. 571; Christopher v. Norvell, 201 U.S. 216, 50 L.Ed. 733.
In Gift et al. v. Love, Superintendent of Banks, 144 So. 562, the court held the Estate of J.E. Gift, deceased, liable for the par value of his stock, although the bank did not fail until long after his death.
Davis v. Weed, 44 Conn. 569, Fed. case No. 3658; Bailey v. Hollister, 26 N.Y. 112.
It ought to be assumed that the claim as probated was regular; that the clerk did all that was required to be done by him; that the clerk allowed the claim for the amount for which it was probated, and that his name was signed thereto showing this fact, because it is always presumed in the absence of a contrary showing that an official does his duty in the manner required by law.
Argued orally by E.C. Sharp, for appellants, and by Clyde Hester and C.R. Bolton, for appellee.
Appellee instituted suit against a number of stockholders of the Booneville Banking Company, a state bank in liquidation, and, from the decree in his favor, five of them or their personal representatives have appealed. The record is involved in such a multitude of facts that we have concluded that to attempt to make an accurate and detailed statement thereof and to discuss the many points of law raised by the parties would produce an opinion too lengthy to be of practical value. Therefore, except as to the law point covered in the last paragraph of this opinion, we shall confine ourselves to a resume of our conclusions:
(a) In the matter of the Sanders' estate: The main contention here has been ruled adversely to appellant in Anderson v. Love (Miss.), 151 So. 366, and, since the decree was against the representative as such, and was not a personal decree, the other objections disappear.
(b) In the matter of Carothers: Looking through the form to the substance, the margin account created by, and credited for, the fifteen thousand dollars note and deed of trust, was equivalent to an original deposit of that amount against which is to be deducted the overdraft account of thirteen thousand one hundred two dollars and twenty-one cents, thus leaving the balance as an original deposit. This cannot be set off against the stock liability, as was held in Anderson v. Love, supra. For more than one reason, the arrangement said to have been made with Creekmore, former liquidator, cannot be availed of here.
(c) In the matter of the Whitesides' estates: There is and can be no objection to the decree as to the fifteen shares originally owned by W.R. Whitesides. As to the fifteen shares which he inherited from his son, the objections are not maintained, because the testimony shows that, aside from those shares, he actually received from his son's estate more than the one thousand five hundred dollars represented by those shares, and that he so dealt with the said fifteen shares and with the son's estate as to fasten upon him the status of a voluntary stockholder in relation to the last-mentioned fifteen shares. But the evidence is not sufficient in these respects as to Mrs. Alice Jordan Whitesides, and her estate is to be held only for what she actually received from or through the estate of her deceased son up to, but not more than, one thousand five hundred dollars.
The decree will be affirmed as to all the appellants except the personal representative of Mrs. Alice Jordan Whitesides, and will be reversed and remanded as to that particular estate, the cost of the appeal to be taxed against the other appellants.
The objection that the demand against the Whitesides' estates was not properly probated is immaterial. The death of all three of the Whitesides, whose estates are involved here, occurred before the bank closed its doors and went into liquidation. At the time of their deaths, their stockholders' liability had not ripened into a claim. The double liability of a voluntary stockholder in a bank, although rooted into and a part of his express or implied contract of subscription to the stock, remains inchoate and immature until the bank closes its doors, goes into liquidation, and it thereupon reasonably appears that the assets of the bank will be insufficient to pay its depositors. Gift v. Love, 164 Miss. 442, 144 So. 562, 86 A.L.R. 63; Anderson v. Love, supra. Until that time, it has no ascertained, enforceable existence, and therefore has been contingent and not absolute — until that time it was a liability and not a claim. Harris v. Hutcheson, 65 Miss. 9, 3 So. 34; Robinett v. Starling, 72 Miss. 652, 18 So. 421. It follows that it is not necessary to probate a demand for stockholder's liability when the stockholder has died before the closing of the bank. This was conceded in Board of Bank Examiners v. Grenada Bank, 135 Miss. 243, 99 So. 903, and is sustained by the authorities where the identical question has been ruled upon, as, for instance, in Hirning v. Kurle, 54 S.D. 334, 223 N.W. 212, Miller Lux v. Katz, 10 Cal.App. 576, 102 P. 946. If it were not so held, the result would be brought about that, where the closing of the bank occurred more than six months after the publication for probate of claims against the estate of a deceased stockholder, the estate would escape liability altogether.
Affirmed in part, and reversed in part.
ON SUGGESTION OF ERROR.
It was erroneously stated in the former opinion that Mrs. W.R. Whitesides died prior to the closing of the bank for liquidation, and for that reason it was immaterial as to whether the claim of the bank for the stockholders' liability on the stock held by A.W. Whitesides, deceased, had been properly made or not.
The fact was that the bank was closed prior to the death of Mrs. W.R. Whitesides, who was also named in the record as Mrs. Alice Whitesides, but subsequent to the death of W.R. Whitesides and A.W. Whitesides.
We have examined the testimony in reference to the probation of the claim against the estate of Mrs. Whitesides, and it shows that the attorney for the banking department, Mr. Bolton, made out the claim for probation and delivered it to the chancery clerk, who accepted and marked it probated upon the proper docket, but the probated claim was not placed by the clerk among the file of papers in the cause, and was lost or mislaid and could not be located at the trial of the cause in the court below. A carbon copy of the original was introduced in the record, and both the chancery clerk and Mr. Bolton, the attorney who prepared it for probation, testified that it was probated.
It is argued originally and on the suggestion of error that because the paper was not among the papers in the cause, and there was nothing produced before the court showing the entry on the probated claim of the words, "Probated and allowed for $ ____," it was void under section 1671, Code 1930.
To sustain this contention would be to place it within the power of a chancery clerk to deprive a party probating a claim of his rights, should the clerk, through negligence or otherwise, fail to place the papers among the files. We do not think parties probating claims should suffer from the failure of clerks to place probated claims in the files and keep them there.
The claim here involved is not a contractual claim, but one for liability imposed by statute, and is based upon statute and not upon contractual writing.
In the case at bar, there is no prejudice to any person by reason of the failure of the clerk to keep the probated claim among the papers. The docket gave the same information as to the nature and character of the claim as the original probate could have given. It is, of course, important to have papers properly placed and the proper notation entered by the clerk, and we do not mean to approve any lack of diligence or care in such cases.
After a full consideration of the suggestion of error, we think the conclusion reached in the original opinion is sound, and the suggestion of error will therefore be overruled.
Suggestion of error overruled.