Jack v. Forrest

BRATTON, Circuit Judge. Henry Porrest died testate in 1917. At that time he owned six shares of stock in Nephi National Bank of Nephi, Utah. They were issued and registered in his name and remained thus registered throughout the time referred to herein. They stood in his name at the time this suit was instituted. By will he bequeathed $1,000 to a niece and devised the remainder of his property as follows: “All the rest, residue and remainder of all real and personal property, of any and every kind and nature whatever, owned by me at the time of my death, after satisfying the above named directions and bequest, 1 give, devise and bequeath to my beloved wife Rhoda. Forrest, for her sole use, behoof and benefit, in her support and maintenance for and during her natural life; and should my said wife leave, at the time of her death, any of said property, either real or personal, then I give, devise and bequeath all the rest, residue and remainder of all such property, real and personal of any and every kind and nature, to- my beloved son Ernest R. Porrest and my belo-ved daughter Lucile Hawkins, to he equally divided between them, share and share alike.” The estate, excluding the stock, consisted of real and personal property of the approximate net value of $10,0-00. Ernest R. Porrest — son of decedent and defendant herein —-was appointed and qualified as administrator with the will annexed in March, .1.918, and thereupon took possession of the property. During the administration proceedings, he and his sister transferred their right, title, and interest as remaindermen to their mother. On March 11, 1920, the court, having jurisdiction of the estate, entered a decree reciting that all claims, accounts, and taxes had been paid; that Ernest Porrest and Lucile Hawkins, heirs at law, had conveyed their interests to Rhoda Porrest, the remaining heir; that Rhoda Porrest thereupon became and was the sole owner of the property constituting the estate and directing that it be distributed to her. Defendant here, as administrator in that proceeding, thereupon delivered all of such property, including the stock, to Ms mother. He did not sec the stock again until after she died in July, 1931. He then found it among her effects. About a. month after the distribution had been made- and while the administration proceedings were still pending, Rhoda Porrest conveyed by separate deeds to defendant and his sister certain parcels of land theretofore belonging to the estate, each deed reciting “this [266] property comes to the grantee as an heir-at-law of Henry Forrest, deceased.” Defendant paid' no., consideration for the real estate which he thus acquired. He still owns it and it exceeds $2,000 in value. ,On November 18, 1981, defendant filed a petition for his discharge as administrator. It was granted and. the estate closed on December 4, 1931. The Nephi National Bank became insolvent and suspended business on December 1, 1931 — prior to the date on which the administration proceedings were closed and the administrator discharged. On March 8,1932, the comptroller of the currency láid an assessment against the stockholders of $100 for each share. That assessment, so far as it related to the stock in question, was not paid. The receiver of the bank thereafter instituted this action at law, pleading the facts in detail. It was alleged among.other things that the duty rested upon defendant, while acting as administrator, to reserve sufficient of the assets of the estate to disharge the liability which might accrue through assessment, or 'to transfer the stock to a solvent distributee; that he did neither; that he acquired without consideration and now .owns real estate formerly belonging to the estate exceeding in value the amount of the assessment in question. Personal judgment for $600' was sought. After interposing certain admissions and denials, defendant pleaded in his answer that the stock had belonged to his mother since March 11,1920j that he distributed it to her in obedience to the decree of the court having jurisdiction of the estate; that the bánk hád knowledge of such facts and that on November 18, 1931, he delivered the stock to the bank, taking a receipt for it reciting that it was tó be held in trust for the estate of his mother. Trial by jury having been waived, the case was tried to the court. Judgment was rendered for defendant. Plaintiff appealed. Defendant presented a motion to dis^ miss the appeal on two grounds: First, that trial by jury was not waived in writing, and, second, that plaintiff failed at the close of the evidence to request special findings of facts. The judgment recites that the- parties stipulated in open court to waive trial by jury. Since the amendment of May 29, 1930, written waiver is unnecessary. 28 USCA § 773. The recitation in the judgment that a jury was waived sufficed. United States v. Perry (C. C. A.) 55 F.(2d) 819. The trial court in an action at law is not required to make special findings of fact. Hendrie v. Turpen (C. C. A.) 50 F.(2d) 1049. The general finding made was equivalent to a verdict of a jury. At the close of all evidence, plaintiff moved for a declaration of law and judgment in his favor. That was sufficient to present the questions raised on this appeal. Maryland Casualty Co. v. Jones, 279 U. S. 792, 49 S. Ct. 484, 73 L. Ed. 960; White v. United States (C. C. A.) 48 F.(2d) 178. The motion is denied. Addressing ourselves to the merits of the case, stockholders in a national bank are liable for, the obligations of the bank, each to the amount of the par value of his stock, and a transfer of stock made within sixty days preceding failure of a bank to meet its obligations or with knowledge of impending failure does not absolve the transferor from liability. 12 USCA § 64. A person holding stock as executor or administrator is not personally liable as a stockholder, but the estate in his hands .is liable in like manner and to the same extent as the testator or intestate would be if living and competent to act and hold the stock in his own name. Section 66-, Id. One-holding stock in a bank continues liable to assessment so long as the stock is allowed to remain registered in his name, although he may have transferred it to another, unless the transfer is appropriately noted in the records of the bank. Cases so holding exist in multiplied numbers. There are certain .exceptions to that general doctrine. The transferor is not liable if he makes a .bona fide sale, indorses the certificate, and requests an authorized' officer of the bank to make the transfer on its records though the officer fails or neglects to do so, or in ease the stock is sold to an officer of the bank, accompanied by a blank transfer, and payment is made with funds of the bank. Perhaps other exceptions obtain, but none has application here. Since the stock in question stood registered in the name of Henry Forrest at the time of his; death, his estate became and remained liable for the assessment. The liability was contingent- from the time he acquired the stock and caused it to be registered in his name until the assessment was imposed. It then became fixed but existed throughout that period and attached to the estate upon Ms death in the meantime. And Bhoda Forrest, the distributee receiving the property belonging to the estate, took it burdened with the unextinguished liability even though the distribution was made prior to insolvency of the bank and before imposition of [267] the assessment upon the holders of shares therein. Davis v. Weed, 7 Fed. Cas. 186, No. 3,658; Whitney v. Butler, 118 U. S. 655, 7 S. Ct. 61, 30 L. Ed. 266. The facts in Matteson v. Dent, 176 U. S. 521, 20 S. Ct. 419, 44 L. Ed. 571, were quite similar to those in this ease. There, the stock stood in the name of the decedent at the time of his death. It was distributed to the widow and children. The bank subsequently became insolvent and 'suspended business. The assessment followed. The court held that the federal statute subjected the estate to liability although insolvency occurred after the demise of the shareholder and subsequent to distribution of the property, and that since the law of the state of Minnesota rendered distributees liable for the debts of an estate, each to the amount of his distributive share, the distributees in question were liable personally for tbe assessment. It required the two statutes- — the state supplementing the federal— to render the distributees personally liable. But the only effect the statute of the state had was to make the allottees personally liable. It did not affect the liability of the estate. The federal statute rendered it liable despite the fact that the bank became insolvent after distribution had been made. That is the effect of the decision in that case. So here, it must be held that the estate of llenry Forrest was liable for the assessment although the bank became insolvent and suspended business after the property had been distributed. And that liability carried with it an equitable lien upon the assets of the estate. Witters v. Sowles (C. C.) 32 F. 130; Drain v. Stough (C. C. A.) 61 F.(2d) 668, 87 A. L. It. 490. Since Rhoda Forrest took the assets burdened with the obligation, the property or the proceeds thereof could be pursued into her hands. Witters v. Sowles, supra; Mann v. Kleisdorff (C. C. A.) 16 F.(2d) 997; Luce v. Thompson (C. C. A.) 36 F.(2d) 183. As distribution did not liberate the property in the hands of the distributee, certainly the subsequent conveyance to defendant did not discharge the land so conveyed because be acquired it without consideration and with full knowledge of all the facts. Defendant never owned the stock. It never was registered in his name. Distribution of the assets in obedience to an order of the court having jurisdiction of the estate and without fraud was not enough to constitute devastavit creating personal liability on his part. It is our conclusion, therefore, that he is not personally liable, but the property acquired from his mother, formerly á part of the estate, is subject to the obligation since its acquisition was effected without eonsideriation and with knowledge of the undischarged liability. Plaintiff’s remedy was to proceed appropriately in equity to impress the property with the lien and to enforce it. Although the action originated as one at law for the recovery of a personal judgment, plaintiff presented a motion at the close of the evidence to transfer it to the equity docket and thereafter to impress such a lien upon the property if the court determined that he was not entitled to recover at law. The court should have sustained the motion. This court has power to make the transfer. Clarksburg Tr. Co. v. Commercial Casualty Co. (C. C. A.) 40 F.(2d) 62,6; Moon Motor Co. v. Moon (C. C. A.) 58 F.(2d) 90. The facts were alleged in detail and the case was tried fully. Accordingly, there is no occasion for a retrial. In such circumstances, this court has the power and duty to make the transfer and, having done so, to consider the proceeding as one in equity. Irons v. Smith (C. C. A.) 62 F. (2d) 644. Defendant delivered the stock to the bank on November 18, 1931. The bank has retained possession of it since that time. In an, effort to extinguish liability, resort is made to the well-recognized doctrine that a transferor of stock in an insolvent national bank will not be held responsible for the neglect or carelessness of a bank or its officers in failing to make the transfer on the records of the bank where the transferor has done all that a prudent man would do. The contention is without effect here because the stock was thus deposited only thirteen days prior to the bank’s suspension of business. Assuming that it was deposited with express direction to make the transfer on the records, that would he ineffective because the bank closed its doors and suspended business less than sixty days thereafter. Fletcher v. Porter (C. C. A.) 20 F.(2d) 23; Jeffreys v. O’Neal (C. C. A.) 64 F.(2id) 284. Furthermore, the receipt, upon which'defendant relies, merely recites that the shares were held in trust for the estate of Rhoda Forrest. There is nothing in the receipt or otherwise in the record indicating that the bank was directed to note a transfer in its records. F'or the reasons stated the judgment is reversed, the cause transferred to equity and remanded with directions to enter a decree in conformity with the views herein expressed. Reversed and remanded.