Lockwood v. United States Steel Corp.

Willard Bartlett, J. Upon the question raised by this appeal, whether the defendant is under any legal obligation to transfer the stock as requested by the appellant, the Appellate Division avows its inability to find any direct authority. The learned judge who wrote the opinion below, however, treats the plaintiff as an ancillary executor whose authority is strictly limited to personal property within the jurisdiction of the court; and he argues that the situs of the property represented by the certificate of stock in question cannot be deemed to be in New York because under the authorities which he cites the certificate is to be regarded as having its situs either *380 at the domicile of the' deceased testatrix (which was Bermuda) or at the domicile of the defendant corporation (which is New Jersey). We do not perceive that it makes any essential difference in this case whether the letters of the plaintiff executor are ancillary or domiciliary. Ancillary administration in this state is regulated by statute and an ancillary executor or administrator has the same general powers as a domestic executor or administrator except in disposing of the decedent’s real property for the payment of his debts and funeral expenses. (Smith v. Second National Bank of N. Y., 169 N. Y. 467.) Ancillary letters are not less in their effect than other letters. “Apart from the statute, all administrations of estates in different countries are independent, so far as a matter of strict right or jurisdiction; hut as a matter of comity all administrations in countries other than that of the domicile are ancillary to the principal administration.” (Cullen, J., in Hopper v. Hopper, 53 Hun, 394, 396; affd., 125 N. Y. 400.) The cases cited in support of the proposition that the situs of the stock in question must be either in Bermuda or New Jersey are Jermain v. L. S. & M. S. Ry. Co. (91 N. Y. 483, 492); In re Enston (113 N. Y. 174, 181); In re James (144 N. Y. 6, 12), and In re Bronson (150 N. Y. 1). In the Jermain case it was merely held that the certificate of the defendant corporation issued to the plaintiff was not itself the stock but only the evidence thereof. “A share of stock,” said Earl, J., “represents the interest which the shareholder has in the capital and net earnings of the corporation.” There is nothing in this which bears directly upon the question here. The Matter of Enston is more nearly in point. There it was held that the corporate stocks of a decedent were not taxable here under the general laws of the state, although the share certificates were held here by the dece *381 dent’s agent. “ The certificates are in no general sense property,” said Judge Andrews. “They simply represent interests in the corporations, and the situs of the property owned by a shareholder in a corporation is either where the corporation exists or at the domicile of the shareholder; it can in no proper sense be said to be where the certificates happen to be in the hands of an agent in a state where the corporation has no existence and the owner no domicile.” It is to be observed that this was a tax case in which the court was endeavoring to determine the locality of corporate stock for purposes of taxation; and as will be shown hereafter, the situs of such property may be in one place so far a¡s the incidence of a tax is concerned and in another when the certificates are stolen or they are sought to be reached by a creditor through the process of attachment. Furthermore, in the case at bar, it may be said that the defendant has an existence in the state of New York for the purpose of registering transfers of its stock; it lives here for that purpose, having come into the state therefor of its own accord; and, therefore, one of the conditions is absent here upon which the statement of the rule in the Miston case was predicated. In the James case, which arose under the Collateral Inheritance Tax Law, Judge Gray said that the certificates of stock held by the testator represented his interests in the corporations which issued them “and the legal situs of that species of personal property is where the corporation exists, or where the shareholder has his domicile;” and the Bronson matter was another tax case in which the same learned judge asserted the same doctrine. Neither of these cases could have been deemed by him to be inconsistent with Simpson v. Jersey City Contracting Co. (165 N. Y. 193), in which he also wrote the opinion, and which is the principal New York authority relied upon by the appellant. In the Simpson case certain certificates of stock of a *382 foreign corporation belonging to a non-resident were in the possession of a resident of this state as security for a debt; and it was held that the interest therein of the owner and pledgor was a property right within this state which was subject to levy under a warrant of attachment. Referring to Matter of Bronson (supra) Judge Gray declared that it was difficult to see how that case, in defining the general understanding of the law with respect to the ownership of stock in a corporation, could have any authoritative application to the question whether an attachment would lie against the interest represented by foreign stock certificates actually in New York; and as to that question he said: “ The distinctions sought to be drawn are, largely, artificial. The truth is that it [the foreign corporation] did have property here, in the common acceptation of the term, as well as in the eye of the law. Certificates of stock are treated by business men as property for all practical purposes. They are sold in the market and they are transferred as collateral security for loans, and they are used in various ways as property. They pass by delivery from hand to hand and they are the subject of larceny.” (p. 197.) The question was whether, the foreign certificates being here, there was not present in this state property of the debtor capable of effectual seizure by judicial process; and this court held that there was. Upon a similar line of reasoning it seems to us that the facts set out in the complaint in the case at bar show that there is property of the plaintiff in New York which he is entitled to have transferred upon the books of the defendant corporation which it has provided and keeps for that purpose in New York. The maxim mobilia sequuntur personam is based upon a legal fiction which has proved most useful in determining the right of succession to personal property; but in modern times “ since the great increase in amount and variety of personal property, not immediately connected with the *383 person of the owner, that rule has yielded more and more to the lex situs, the law of the place where the property is kept and used. ” (Pullman’s Palace Car Co. v. Pennsylvania, 141 U. S. 18, 22.) The great writers on the conflict . of laws concede that it is not of universal application; and Story declares that it does not obtain whenever it becomes necessary for the purpose of justice that the actual situs of the thing should be examined. (Story on Conflict of Laws, § 550.) Justice certainly requires that the actual situs of the thing should be considered in the present case, where the alternative would be to send the shareholder out of the state to effect a transfer of stock which the corporation has provided convenient ways and means for transferring right here in New York. To impose this burden upon the shareholder unless it were demanded by some imperative rule of law would subject the administration of justice to deserved reproach. The tendency of the courts to prefer actualities to fictions in passing upon the disposition of personal property is well illustrated by a comparatively recent English case which the learned counsel for the respondent concedes is favorable to the appellant’s contention in part. (In re Clark, L. R. [1 Ch. 1904] 294.) There the court was called upon to construe a will by a testator domiciled in England, who bequeathed all his personal estate in the United Kingdom to his home trustee, and all his personal estate in South Africa to his foreign trustee. He was possessed of shares in South African mining companies, which had an office in London where a duplicate register of shares was kept and shares could be transferred. Mr. Justice Far well said: “ I have got to find out the locality of the personal estate, whether English or South African. The property I have to deal with is a share, and that is represented by a certificate without which no transfer can take place. The actual effective transfer can be done equally effectually in South Africa or in England, and the only conceivable distinction that I can dis *384 cover in point of locality is the possession of the certificate which for this purpose is essential to complete the title to' the shares. Therefore I hold that where the certificates of the shares in these companies were in England they pass under the gift of property situated in England, and not under the gift of property in South Africa.” Hence it will be seen that the place where the shares of stock actually were was the controlling element in the construction of this will, since no reference was made by the learned judge to the doctrine that personal property is deemed to follow the domicile of the owner. The conclusion that the plaintiff is entitled to prevail upon the allegations of the complaint finds support not only in the opinion of Judge Gray in the case of Simpson v. Jersey City Contracting Co. (supra), but also in the salient fact that the defendant corporation by the establishment of a stock transfer office here has become pro tanto domiciled in this state. The will of the testatrix was lawfully admitted to probate in the state of New York and letters testamentary were issued to the plaintiff as her executor in this state. The certificate of stock in the defendant corporation which had belonged to the testatrix was also in the state of New York. The defendant, a New Jersey corporation, maintained an office for the transfer of its stock in the state of New York. Nevertheless the defendant, relying upon the proposition that the situs of personal property owned by a decedent must be deemed to be either at the domicile of the decedent or in the case of corporate stock the domicile of the corporation, insists that the plaintiff can only assert his title to the stock which he has derived from the testatrix in the state of New Jersey under whose laws the defendant was incorporated. As has already been pointed out, the proposition for which the defendant contends is that shares of stock have their situs only in two possible places — either at the *385 domicile of the corporation or at the domicile of the stockholder. In the present case, however, it is alleged in the complaint and necessarily admitted by the demurrer that the defendant maintains in the county and city of New York an office for the purpose of receiving certificates of its corporate stock for transfer upon its books and of delivering new certificates when such transfers have been made. Does not this fact constitute New York the domicile of the corporation, to some extent at least — so far as the registry and transfer of shares therein are concerned ? We think it does. It has been held in reference to life insurance companies both by the Court of Appeals of this state and by the Supreme Court of the United States that such corporations may often be regarded as domiciled for certain purposes in the foreign state where they are permitted to do business. (See Morgan v. Mutual Benefit Life Ins. Co., 189 N. Y. 447; New England Mutual Life Ins. Co. v. Woodworth, 111 U. S. 138.) The order of the Appellate Division should be reversed and the interlocutory judgment affirmed, with costs in both courts, and the question certified answered in the affirmative. Cullen, Oh. J., Hiscock, Chase, Hogan and Miller, JJ., concur; Gray, J., not sitting. Ordered accordingly.