Baird v. McMillan

*259 Biedzeli., J. This is an appeal from a judgment against the defendant as executor of the last will and testament of James Balfour, deceased. The appeal presents the single question as to whether or not an estate of a deceased person who had been a shareholder in a state bank may be held liable, through the executor, for an assessment on account of a superadded statutory liability where the bank fails after the death of the shareholder and where the claim was not filed or allowed in probate court. The deceased died in March, 1922. The will was filed for probate in Grand Forks county, and at the time the liability was assessed the stock in question had not been distributed and the estate had not been closed. The time for filing claims in the estate pursuant to notice to creditors expired in March, 1923. The Clyde State Bank, in which the deceased held fifteen shares of the par value of $1,500, closed January 30, 1924. On February 15, 1924, the district court in charge of the receivership entered an assessment order assessing the full amount of the statutory liability. The claim for this liability was presented to the executor on May 1, 1924. We do not understand that there is any serious contention that the estate of the deceased shareholder is not liable to assessment under § 5168 of the Compiled Laws for 1913, which provides for the super-added liability, but it is contended that the claim is barred by reason of the provisions of § 8736 of the Compiled Laws for 1913. In so far as material, that section reads as follows: 'Tf a claim arising upon a contract heretofore made be not presented within the time limited in the notice, it is barred forever, except as follows: If it be not then due, or if it be contingent, it may be presented within one month after it becomes due or absolute, . . . All claims arising upon contract hereafter made, whether the same be due, not due or contingent, must be presented within the time limited in the notice ; and any claim not so presented is barred forever.” *260 ■' ■ THe liability of tbe shareholder is “for all' contracts, debts and engagements of snob association made or entered into to tbe extent of tbe amount of bis stock therein at tbe par value thereof, in addition to tbe ’amount invested in and due on such shares.” Comp. Laws, 1913, § 5168. Is tbe liability prescribed by this section a claim which is barred if not presented within tbe time limited by § 8136, supra? It is first to be observed that tbe limitations are not absolute — exceptions being made where tbe claimant bad no notice by reason of being out of the state. It is further to be observed that tbe bar operates íigainst -the specific claim and that tbe statute seems to presuppose the existence of a legal person capable of presenting tbe claim, whether or •not it be due or whether or not it be contingent. Tbe statute does not 'seem to contemplate a situation where, owing to the nature of the liability, there is no person in existence capable of presenting the claim. ’ •• The liability imposed by § 5168 is secondary rather than primary; 'that is, the corporation itself is an entity, separate and apart from its •members, and the stockholder and the corporation are not made jointly 'or jointly and severally liable for the debts of the corporation. Tbe "debts for which the stockholder is to be held answerable are the debts 'of the corporation. Obviously, the - plaintiff seeking to maintain a separate action against the stockholder would have to allege something more than the mere existence of the corporate debt in order to predicate ■a ■-liability under the statute. For the purpose of applying the ordinary statute of limitations to the action brought to enforce the added liability of stockholders under statutes similar to that involved here, the action is generally held to arise upon the insolvency of the bank rather than upon the breach of the particular obligation of the bank for-which the stockholder is declared to be answerable. See Bennett v. Thorne, 36 Wash. 253, 68 L.R.A. 113, 18 Pac. 936 and the numerous cases cited in the opinion on page 940; 1 Michie, Banks & Banking, 226. This court has held that under chapter 53 of the Laws of 1915 the liability imposed by § 5168, Comp. Laws, 1913, may be enforced ■in an action by the receiver. Davis v. Johnson, 41 N. D. 85, 170 N. W. 520. Aside from such a statute as chapter 53, supra, it is open to serious question whether or not a receiver could enforce this liabilitv at all, since it is not regarded as an asset. Davis v. Johnson, supra; 31 L.R.A.(N.S.) 365, note. From these observations, then, it would *261 seem tbat to adopt tbe appellant’s construction of tbe statute in tbe probate code barring claims for failure to present them witbin tbe required time (Comp. Laws, 1913, § 8736), as applied to sucb a claim as tbat involved bere, would be equivalent to bolding that a claim is barred though there was no legal person in existence capable of presenting it during tbe prescribed period. Nor during tbe whole of tbat period tbe bank was in operation, in charge of its own officers and presumptively, and perhaps actually, solvent; hence, there was no receiver to enforce tbe claim. Not being in tbe full sense of tbe term an asset, it could not have been enforced by tbe officers of the bank. Though it might have been enforced by a creditor, Union Nat. Bank v. Halley, 19 S. D. 474, 104 N. W. 213; 1 Michie, Banks & Banking, 218, the liability would have bad to be predicated upon tbe prior commission bj tbe bank of an act of insolvency. In other words, while the bank is a going institution a depositor or other creditor is in no position to present a contingent claim to tbe probate court in case of tbe death of a stockholder, and even tbe suggestion tbat he might have done so borders on absurdity. Yet, under tbe appellant’s contention, this would be tbe only means of preventing tbe bar of tbe statute from applying in case the bank should continue open and apparently solvent for the period prescribed by tbe probate code for filing claims. Furthermore, as is frequently suggested, tbe purpose of a nonclaim statute, sucb as § 8736 of tbe Probate Code, is to compel claim,ants to present their claims witbin a period tbat would enable tbe probate court and those charged with the administration of tbe estate to makq suitable arrangements for discharging the obligations owing or which may become owing. Without expressing any opinion as to tbe duty of creditors or a receiver, where a bank might suspend before tbe expiration of tbe regular period for filing claims, it would seem tbat every purpose of tbe statute is served, with respect to claims of tbe character involved bere, when tbe court and tbe executor or administrator are apprised through tbe inventory or. otherwise tbat tbe deceased was a stockholder in a bank and as such subject-, contingently, to assessment or liability under tbe statute. Batió legis est anima legis. For the foregoing reasons we are of the opinion tbat tbe remedy of tbe receiver against tbe estate of tbe defendant was not barred by '§’ 8736, Comp. Laws, 1913, and tbat the judgment appealed from is cor-¡ *262 rect. Among tbe authorities tending to support our conclusions will be found the following: Mortimer v. Potter, 213 Ill. 178, 72 N. E. 817; Re Martin, 56 Minn. 420, 57 N. W. 1065; Springhorn v. Dirks, 72 Mont. 121, 231 Pac. 912; Barton Nat. Bank v. Atkins, 72 Vt. 33, 47 Atl. 176; Gianella v. Bigelow, 96 Wis. 185, 71 N. W. 111. The judgment is affirmed. ChRistxANsoN, Ch. J., and Buree, Johnson, and Nuessle, JJ., concur.