99 So. 903 | Miss. | 1924
delivered the opinion of the court.
The suit was in chancery by the state board of bank examiners against the stockholders of the Bank of Com
One of the defendants in the bill was the appellee, administrator of deceased, W. M. Miers, who owned several shares of the capital stock of the bank and who died four months after the bank was put in course of liquidation, and his administrator defended against the claim of the bank examiners on the ground that the bank examiners failed to probate the claim against the estate' within the statutory period after publication of notice. The court sustained this contention and dismissed the bill as to the estate of Miers, deceased, and from this decree the bank examiners appeal.
It was argued by the appellants that the bank examiners were not required to probate the claim against the estate of stockholder Miers, because it was a contingent liability at the time of the failure of the bank and during the succeeding four months before the death of Miers, and that it was not required to be probated until the assets of the bank had been liquidated to the extent that the pro rata liability of Miers could be fixed with certainty, which could be ascertained only after his death in this case.
In other words, the contention is that the double liability of a stockholder under the statute is not a probatable claim until a liquidation of the bank’s assets so as to determine definitely what amount, or. what pro rata amount, the stockholder is due the liquidating bank upon the stock owned by him.
The opposite view of appellee is that, when the bank failed and was put in course of liquidation by the bank examiners, the stockholders became immediately liable for double the value of the stock owned by them, and that, since the bank in this case failed four months be
So the simple question in the case is whether or not the liability of the stockholder was fixed and accrued before his death, or whether it was a contingent liability which required a liquidation of the assets of the bank to ascertain the pro rata amount due by the stockholder before the claim passed from the contingent status to one of certainty. Of course, if the claim was probatable —that is to say, if the amount claimed was certain against the stockholder while he was living — then the claim was required to be probated during the statutory time after his death.
We think the case of Pate v. Bank of Newton, 110 Miss. 666, 77 So. 601, has settled this- question in favor of the appellee in the present case. As we understand that decision, a suit may be brought by liquidators against the stockholders on their liability for the full amount of their stock, at any time after the bank is taken over in liquidation whenever it is reasonably apparent that the assets of the bank will not pay the depositors. In the case before us the bill filed by appellants charges that the bank was hopelessly insolvent at the time it was put in course of liquidation and. before the death of the stockholder Miers.
Therefore it is conclusively shown the assets of the bank would not be sufficient to pay the depositors, at a time when the deceased Miers was still living. Consequently under the Pate Case, supra, the liability of, the stockholder Miers while living was not contingent but was certain, and the suit for recovery against him could have been maintained for the full amount of the stock, and
The decree of the lower court is affirmed.
Affirmed.
