Appeal from a judgment for the plaintiffs in the Superior Court of the City and County of San Francisco. Hunt, J.
An agreed case was submitted to the Court below, in which the question was stated to be whether or not the defendant was required to transfer the stock to plaintiff, and whether it was liable to damages for refusing to do so; and judgment was entered that it should transfer the stock.
In this State " no sale of any property of a decedent is valid unless made under order of the Superior Court." Now, if no sale of the property of any decedent can be made in this State without an order of Court, and the stock of a nonresident stockholder in a California corporation can not be completely transferred until the stock is brought here and duly transferred on the books of the company, would not such not a transfer, without an order of Court, be in violation of law?
R. P. & H. N. Clement, for Appellant.
Chickering & Thomas, for Respondent.
The stock is personal property. As such, it is governed by the law of the owner's domicile. By such law it passed upon the owner's death to his executor. The executor has transferred the stockin accordance with the forms prescribed by both the lex domicilii and the lex rei sitoe. Has such transferee the right to have the stock transferred to his name upon the books of the defendant corporation, or in default thereof to maintain an action for damages? The disability of a foreign executor to sue in the Courts of this State is a personal one, and does not pass to his vendee or assignee. (Harper v. Butler, 2 Pet. 239; Grace v. Hannah, 6 Jones' Law, N. C., 94; Andrews v. Carr , 26 Miss. 577; Thomas v. Reister , 3 Ind. 369.)
JUDGES: Myrick, J. Thornton, J., and Sharpstein, J., concurred.
From the agreed statement of facts it appears that Mathew Bird was a resident of the State of New York, in which State he died testate. By his will he nominated Mary Bird executrix and Edward O. Bird executor thereof. In the will was a clause " that my said executrix and executor, and the survivor of them, shall have, and I hereby give to them, and the survivor of them, full power and lawful authority to sell and convey all or any part of my real or personal estate if they shall think proper and necessary to do so at any time after my decease." The will was duly admitted to probate in New York, and letters testamentary issued to said Edward O. Bird, who alone appeared and qualified. At the time of his death Mathew Bird was the owner of two hundred and fifty shares of the capital stock of the defendant corporation, standing in his name, and the certificates therefor were in his possession. After the issuance of letters, Edward O. Bird, as such executor, sold the stock to plaintiff and assigned the certificates by indorsement and delivery. The plaintiff presented to defendant proof of the foregoing facts and demanded the transfer of the stock on the books of defendant, which was refused. The Court below rendered judgment for plaintiff, directing the defendant to transfer the stock. The judgment is correct. An executor or administrator in another jurisdiction, with power to sell, and having property of his testator or intestate, may sell the same, and vest the title in the purchaser. The title of the purchaser was complete as between the parties when the certificates had been indorsed and delivered; it was not necessary to have letters of administration issued in this State in order to obtain a transfer on the books of the corporation. ( § 324, Civ. Code.) The bond provided for in § 326 was not required by defendant. After the transfer had been made, what was there remaining in the estate to be administered upon in this State?
In the absence of any statement to the contrary, we presume that the law of New York in regard to the issuance of letters to the executor alone, and his power to act as sole executor, is the same as in this State.