Jane v. Martinez

Reed, J., delivered the opinion of the court. Appellees, are the four children of Charles L. Johnson. Mrs. Elizabeth D. Myers, one of the defendants to the original bill in this ease, was his widow for a time and then remarried. He formerly resided in Jackson county, Miss., but at the time of his death was a resident of Mobile, Ala. He left a will, giving all of his estate to his widow and naming her as executrix. When he died, he owned twelve shares of stock in the Merchants ’ & Marine Bank of Scranton, Miss., of the par value of fifty dollars per share. The will was probated at Mobile. Afterwards it was probated and recorded in Jackson county, Miss., and administration was there taken out upon his estate by the executrix. [214] Charles L. Johnson was indebted to the appellees, his children, in various sums. Mrs. Myers, as guardian for the children, probated their claims against their deceased father’s estate. Debts were proved against the estate in the total amount of seven thousand six hundred and one dollars and fifty nine cents. A large part of these were the amounts due appellees. The executrix did not inventory the bank stock as an asset in the administration of the estate in Jackson county. The stock appears to be quite valuable, and yielded the large dividends of ten per cent, per annum, and at one time after Mr. Johnson’s death there was a stock dividend of one hundred per cent, declared. Thereafter Mrs. Myers sold and assigned the stock to W. C. Fitts. The appellant, E. J. Jane, was on the bond of the executrix. All these facts are substantially shown in the bill of complaint filed by appellees against Mrs. Myers, the appellant, Mr. Jane, the Merchants’ & Marine Bank, and W. C. Fitts. In the bill appellees prayed for judgment against Mrs. Myers for the full amount of the value of the stock with the dividends which she collected, claiming that this stock was an asset of the estate of Charles N. Johnson, which should have been inventoried and accounted for in the administration of the estate in Jackson county; therefore that the executrix was liable for the value of the stock and the total amount collected by her as dividends thereon and received as the purchase price from the sale thereof, together with legal interest to be charged against her, and claiming that she should be'required-to account for the full amount of all so received by her. Judgment was also asked against the bondsman, E. J. Jane, for the amount of the penalty of the bond given by the executrix, one thousand dollars; and judgment was also prayed against the Merchants’ & Marine Bank for the amount received in the sale of the stock to W. C. Fitts, which appellees claim they wrongfully permitted. To this bill demurrers were filed by the several parties, and therein it was asserted that the executrix, after quali [215] fying in Mobile county, Ala., and becoming thereby the domiciliary representative of the estate of decedent, was accountable there, if at all, for the bank stock; also that the situs of the bank stock, for the purpose of the administration of his estate, was at the home of the owner thereof at the time of his death. In short, that the situs of the bank stock was in Mobile, Ala., where Mr. Johnson died, rather than in Jackson county, Miss., where the bank was located. From the decision of the court overruling the demurrers, the defendants appealed to this court to settle the principles of the law involved. Reference is now made to the opinion in that appeal; the case being Elizabeth D. Myers et al. v. Mary J. Martinez et al., 95 Miss. 104, 48 South. 291. We think it will be seen by review of the report that one of the chief questions for consideration by the court in that appeal was the situs of the bank stock — whether in Alabama or Mississippi. The decision of the chancellor in overruling the demurrers filed by appellant, E. J. Jane, and Mrs. Myers was affirmed. The court decided that there was no liability on the part of the Merchants’ & Marine Bank, and reversed the case and dismissed the bill as to the bank. Mayes, J., delivered the opinion of the court, said: “The bill charges that the administration of the estate, so far as it involved property within this state, was undertaken here. The bond was filed and approved in the probate court of this state, and it became the duty of the executrix tó fully administer all of the property located here and pay all debts, in so far as the property would go. The debts of the complainants were incurred here and probated in the probate court of this state. ’ ’ Appellant, Ei. J. Jane, and Mrs. Myers then filed their answer to the bill. The allegations of the bill are to a large extent admitted. They averred, however, that under the laws of the state of Alabama, where Mr. Johnson resided at the time of his death, personal property be [216] longing to a decedent to the amount of one thousand dollars in value descended exempt to the widow and minor children, and that, including the bank stock, the amount of personal property left by Mr. Johnson did not exceed the sum of one thousand dollars, and that this bank stock was therefore vested in his widow and children, and that she (the widow), under his will, was entitled to take, and did take, the same free from administration and free from the payment of his debts. The answers admitted the indebtedness to appellees by their father, and admitted that the estate was indebted generally as stated. We find, in short, that the answer really raised the same question as to the situs of the bank stock — whether in Mobile, the place of residence of Mr. Johnson when he died, or in Jackson county, Miss., the place of the location of the bank. The record shows that the probate court of Mobile county, Ala., through the report of appraisers, recognized the bank stock as exempt property in favor of the widow and children, and not liable to the debts of the decedent. Under the definition as to what are assets of an estate, as stated in section 2056, Code of 1906, it is clear that this bank stock was: an asset of personal property belonging to the estate of Mr. Charles L. Johnson. The bank was situated in Jackson county, and, under the laws of this state, the stock in the bank had its situs where the bank was located. A certificate of stock in a bank is the evidence of ownership of an interest in the bank. Therefore the situs of the interest in the bank evidenced by the certificate must be that of the bank. We find that in the original bill the appellees prayed that the recovery which they sought should “inure to the benefit of all the bona fide claims of creditors as shall be established against said estate in the manner required by law.” The court, in rendering final decree, stated that jurisdiction was reserved “for the purpose and to the extent of determining- the prior right to said funds when so collected or paid in, as aforesaid, between the creditors.” [217] The chancellor decided that the failure of the executrix to report and administer the bank stock, and her appropriation of the same as her own, constituted a breach of her bond. A decree was rendered against Mrs. Myers for the full amount received by her from the bank stock, together with interest thereon at the legal rate of six per cent., and against appellant, the surety on her bond, in the sum of the penalty thereof, one thousand dollars. We believe that the chancellar was correct in his decision. Affirmed.