In re Estate of Beard

CoNAWAY, Chief Justioe. The intestate left an estate insufficient to pay his debts in full. He was a stockholder in the Cheyenne National Bank, an insolvent corporation, now in the hands of Joel Ware Foster as receiver. Intestate was liable under the laws of the United States upon the subject of banking, for the debts of the corporation to an amount equal to the par value of his stock in the corporation. This liability survives against his estate. The amount is fixed by the judgment and decree of the United States Circuit — 110 — Court: for the District of Wyoming at $6,139.93, and this amount is not in dispute. But Foster as receiver of the Cheyenne National Bank claims that this liability constitutes a preferred claim against the estate. He filed his motion in the district court for Laramie County, a court of probate jurisdiction, and having jurisdiction of this estate, that the administrator pay to him this claim in full without regard to the assets and other liabilities of the estate, “for the reason,” as stated in the motion, “that said claim aforesaid is a trust fund and no part of the general assets of said estate.” In the brief filed on behalf of the receiver this proposition is stated in somewhat different language. It is claimed that the statute establishing the stockholder’s liability £ ‘ creates from his estate a trust fund for the payment of the debts of the bank,” and further, that the decree of the United States Circuit Court was based upon the ground that the statutory liability of the stockholder £ ‘ created and carved from his assets a trust fund for the payment óf the debts of the bank, and that, therefore, the assets of the decedent to the amount of this guaranty or fund, constituted in fact no part of the general assets of the decedent’s estate, but are trust funds, dedicated to the payment of this liability.” Upon the hearing of this cause in the district court, upon the motion of the receiver for preference in payment, that court found that important and difficult questions arose in the cause, and upon its own motion and with consent of all parties, reserved and sent to this court for decision such questions. They are three in number. 1. Does the statutory liability of a stockholder of a national • bank to pay toward its debts a sum equal to the face value of his stock create from his assets a trust fund for the payment of the debts of the bank? 2. Is the liability created by the statute mentioned in the last question entitled to preferential payment out of the funds of the insolvent debtor ? 3. Where a stockholder of a national bank dies subse — 111 — quent to tbe insolvency of the bank, but before any assessment is made on his stock on account of such insolvency, and after his death an assessment equal to the full value of his stock is made upon the administrator of his estate, and where his estate is insolvent, should such assessment be given a preference over the claims of general creditors ? It is not questioned that the entire assets of the intestate are held by the administratór in trust for the payment of the debts of the intestate. But this of itself does not give to any particular debt preference in payment over any other debt. The claim urged on behalf of the receiver is that the liability of intestate upon his bank stock is entitled to preference. Under Section 5152, U. S. Rev. Stat., the administrator is not personally liable on account of this stock, but the estate and funds of intestate in his hands are liable in like manner and to the same extent as the intestate would be, if living. It is not questioned that the principles involved are the same as if the liability of intestate had been for unpaid subscription upon his capital stock. One authority states the “trust fund ” doctrine in such cases as follows : “ It is a favorite doctrine of American courts that the capital stock and other property of a corporation is to be deemed a trust fund for the payment of the debts of the corporation, so that the creditors have a lien or right of priority of payment on it, in preference to any of the stockholders of the corporation.” (Thompson’s Liability of Stockholders, Sec. 10.) It is apparent that the doctrine must have a much more extensive application than this to sustain the claim of the receiver in the case at bar. In a note to the section quoted the learned author says: “I have not found a similar statement of doctrine in any book of English reports. The idea appears first to have been formulated by the fertile brain of Mr. Justice Story, in Wood v. Dummer, 3 Mason, 308, decided in 1824.” But the case — 112 — of Wood v. Dummer bas been extensively followed by both federal and State courts, and the doctrine of that case is perhaps now too firmly established in America to be denied. The case was a bill in equity, brought by some of the creditors against some of the stockholders of the TIallowell and Augusta bank, and sustained on the ground of the impossibility of bringing into the suit all the parties interested. There was a recovery against the stockholders, the “ trust-fund ” doctrine being announced, as it appears, for the first time. No question of priority of payment arose. A good statement of the result of the cases upon this branch of the law of the liability of stockholders is given in 23 Am. & Eng. Ency. of Law, at page 855, in these words: “The liability of members of a corporation is founded on statute. But in the modern stock corporation, where membership is usually acquired by entering into the contract of subscription, • each member may be said to assume the obligation to pay to the company the full amount named in his contract, i. e., he agrees to pay the corporation only, and the satisfaction of its claim in any manner acceptable to it, discharges him from further liability. But the American courts of equity have evolved the doctrine that by the act of subscription one becomes liable for the full amount thereof to corporate creditors as well as to the corporation; that all who deal with the latter have a right to rely upon the total amount subscribed as a security for their claims — in a word, and in the language of the courts themselves, that unpaid subscriptions are a ‘£ trust fund 1 ’ for the payment of creditors. While in its origin this doctrine is distinctively American, and does not obtain in ' England, yet by statute, a limited application of similar principles is there allowed. The more recent applications of the doctrine have been subjected to considerable criticism in this country.” This statement of the law is sustained by numerous citations of cases, and is followed by a discussion of the applications of the doctrine. But nothing appears to — 113 — indicate that it has ever been applied to give to the stockholders’ liability for unpaid subscriptions for stock a preference in payment over other debts of the stockholder. Neither have counsel cited a case in.which such application of the “trust-fund ” doctrine has been made; neither has such a case fallen otherwise under our observation. In the case of Thompson v. Reno Savings Bank, and others, 19 Nev., 242, it was held that it was not necessary to present to the executor or administrator of a deceased stockholder a claim for unpaid subscription to the capital stock of the bank before bringing an action thereon, although the statute provided that no holder of any claim against the estate of a decedent should maintain an action unless such presentation had first been made. The following reason is given in the opinion of the court: “The stockholders are trustees of the creditors, and suits to establish and enforce the trust are maintained against the representatives of deceased persons, upon the theory that the decedent held money equal to the amount of his unpaid subscription, in trust for the creditors, and that the fund, although incapable of identification, has passed into the hands of the executor or administrator. Such a fund is properly no part of the estate of a deceased person. The deceased stockholders were trustees and not debtors of the bank’s creditors.” The doctrine of this case fully sustains the contention of the receiver. If the administrator has taken possession of any money or property that did not belong to the intestate and did belong either to the bank or its creditors, he should deliver such money or property to the receiver who represents both the bank and its creditors. But no trust fund in money and no trust property ever passed into the hands of intestate from any source. The trust is purely constructive. The fund is purely constructive. It may have no existence in fact. The stockholder may have neither property nor money, but his debt to the corporation for unpaid subscription for stock is held to be a trust fund. The corporation, according to the — 114 — American doctrine, may not release the debt to the prejudice of its creditors without payment in full. If the corporation. does release the stockholder without full payment, the creditors of the corporation may resort to the stockholder for payment to the extent of the stockholder’s liability for unpaid subscriptions. To this extent the cases go, and some seem to go farther. But I do not find any case that goes to the extent of charging the property of a stockholder with a trust or lien on account of his unpaid subscriptions for stock. The doctrine of the Nevada ease, however, would lead to that result. It was a suit in equity by a judgment creditor of an insolvent corporation to subject unpaid subscriptions for stock to the payment of his debt. Two of the defendants were representatives of deceased stockholders. Of the conclusion that the statute requiring claims to be presented to the executors or administrators of deceased persons before suit did not apply in that case, one commentator says: “It is believed that this conclusion can not be maintained upon principle. The rule which allowed a trust fund to be followed from hand to hand and recovered, is believed to apply only in cases where the fund is earmarked, or separated from the remainder of the estate of the trustee in such a manner that it can be identified.” Thompson on Law of Corporations, Sec. 3328. And this suggests the question which must arise in every case under the doctrine of the Nevada, court, what portion of the property of the stockholder constitutes the trust fund which is properly no part, of his estate ? Does the trust attach to all of his property? Does any one purchasing his property with knowledge of his indebtedness to a corporation for unpaid subscription for stock take the property subject to the trust? No court has answered these questions directly, because no court has made the application of the trust-fund doctrine urged on behalf of the receiver in the case at bar. And, on the other hand, it must be said that no court has — 115 — ruled directly against this application of the doctrine. It seems that none of the courts have been called upon to rule directly upon the exact question presented here. The application of the trust-fund doctrine claimed here is evidently a new application of that doctrine. The case of Peters, receiver, v. Bain, 133 U S., 670, cited by counsel, has, however, a direct bearing upon the question under consideration. Bain & Bros, were directors and stockholders to a large amount in the Exchange National Bank of Norfolk. The bank was insolvent. Bain & Bros, were insolvent. They made an assignment of all of their property for the benefit of their creditors. Peters, receiver of the Exchange National Bank of Norfolk, brought the action by bill in equity to set aside the assignment, and subject the assigned property to the payment of debts due the bank. The liability of the Bains on account of their stock is considered, beginning at page 691, opinion of Chief Justice Fuller. The validity of the dee'd of assignment and the trust-fund doctrine are disposed of in the following language: ‘£ Counsel contends that the deed was in contravention of Sections 5151 and 5234 of the Bev. Stat. of the U. S., which provide that the shareholders of every national banking association shall be held individually responsible for its debts to the extent of the amount of their stock, and additional thereto, and that the comptroller can enforce that individual liability. It is insisted that the capital stock is a trust fund of which the directors are the trustees, and that the creditors have a lien upon it in equity; that this applies to the liability upon the stock of a national bank; and that no general assignment of his property for the payment of his debts can lawfully be made by a shareholder, certainly not when he is a director. Undoubtedly, unpaid subscriptions to stock are assets, and have frequently been treated by courts of equity as if impressed with a trust sub modo in the sense that neither the stockholders nor the corporation can misappropriate such subscriptions so far as creditors are con — 116 — cerned. Richardson’s Executor v. Green, Ante, 30, 44. Creditors have the same right to look to them as to anything else, and the same right to insist upon their payment as upon the payment of any other debt due to the corporation. The shareholder can not transfer his shares when the corporation is failing, or manipulate a release therefrom for the purpose of escaping his liability. And the principle is the same where the shares are paid up, but the stockholder is responsible in respect thereof to an equal additional amount. There was, however, no attempt to avoid this liability, and the fact of its existence did not operate to fetter these assignors in the otherwise lawful disposition of their property for the .benefit of their creditors.” This needs no comment. It appears to leave no room for the application of the trust-fund doctrine to the extent of giving to the receiver or to the creditors of an insolvent corporation, preference in payment from the estate of an insolvent stockholder as against the general creditors of such stockholder, whether he be living or dead. The trust evidently can have no greater effect on the property in the hands of an administrator than in the hands of the assignee. Of the three questions submitted, the first is answered yes, to the extent indicated in this opinion. The second and third are answered in the negative. Potter, J., and CorN, J., concur.