| Mass. | Jan 4, 1924
This is a suit in equity by the commissioner of banks in possession of the Hanover Trust Company to enforce the liability of its stockholders. The suit is similar in nature to Commissioner of Banks v. Cosmopolitan Trust Company, ante, 334. That decision settles most of the points presented on this record and is adopted as here applicable without discussion.
The questions in the case at bar not there decided remain to be considered.
1. The bill alleges that the several defendants named as stockholders in the Hanover Trust Company were such stockholders on August 11, 1920, the date on which the commissioner of banks took possession of its property and business. There is no allegation that they were stockholders when the judgment was recovered against the trust company under G. L. c. 158, § 46, as to which there are adequate averments.
The commissioner of banks in possession of the trust company brings this suit by virtue of the powers conferred upon him by G. L. c. 167, § 24. As to forms of remedy so far as applicable he must follow G. L. c. 158, §§ 46, 47, 49-54, inclusive. There is no specific time prescribed by the statute for the ascertainment of those stockholders who are hable for the contracts, debts and engagements of a trust company in liquidation by the commissioner of banks under G. L. c. 167. It is provided in G. L. c. 158, § 49, that suits by creditors to enforce stockholders’ liability shall be against “ persons who were stockholders ... at the time of the commencement of the suit in which such judgment was recovered.” That provision is applicable to suits by creditors to enforce stockholders’ liability. It was framed originally with reference to such suits alone. It is not applicable in substantive effect to the situation presented by this record. The commissioner of banks does not bring this suit as a creditor. He sues in his official capacity for the benefit of the creditors designated in other sections of the law as beneficiaries. Their identity and their rights to share in the assets are in general fixed as of the date when the commissioner takes. possession of the trust company.
This conclusion is reached without reference to St. 1922, c. 488, which makes specific provision to the effect that suit to enforce liability shall be brought against persons who were stockholders at the time of taking possession of the trust company by the commissioner. It follows that the demurrers must be overruled.
2. The demurrer of the trustee in bankruptcy of the estate of Charles Ponzi has not been argued. Another suit is pending presenting issues between him and the commissioner of banks. That demurrer is overruled but without prejudice to whatever questions rightly are raised in that other suit.
3. Michele Russo appeared by the records of the trust company to be the owner of twenty-one shares of its stock at the time the commissioner of banks took possession of its property and business in 1920. Michele Russo had died and Addolorata Russo had been appointed administratrix of his estate in 1918. The inventory of his estate filed September 30, 19.19, showed twenty-one shares of the stock of the trust company belonging to the decedent. The first account of the administratrix filed in November, 1920, showed these shares among the assets of the estate. The estate has not yet been distributed nor has the administratrix been dis
The short statute of limitations, G. L. c. 197, § 9, is not a bar to this proceeding. The liability of the holder of these shares of stock was not extinguished by the death of Michele Russo in 1918. The liability had not then accrued, because the commissioner of banks had not then taken possession of the trust company and he had not determined to enforce the stockholders’ liability and the judgment against the trust company required by G. L. c. 158, § 46, had not then been entered. The earliest of these events did not occur until nearly two years after the death of Michele Russo. The stock did not cease to have an owner because of the death of Michele Russo. It continued to exist and to have an owner. When each of these events took place, the administratrix of his estate was the holder of the legal title to these shares. She continues to be such holder. She as such administratrix is therefore the shareholder. She is in that capacity liable to the assessment decided upon by the commissioner of banks and being enforced by the present suit. The commissioner of banks had a right to treat Michele Russo or his estate as owner for the reason that there had been no transfer of the stock on the books of the corporation. The liability of a stockholder or his estate continues after his death until there is such transfer or demand therefor. Matteson v. Dent, 176 U.S. 521" court="SCOTUS" date_filed="1900-02-26" href="https://app.midpage.ai/document/matteson-v-dent-95198?utm_source=webapp" opinion_id="95198">176 U. S. 521.
The short statute of limitations is a bar to ordinary debts of a decedent. Wells v. Child, 12 Allen, 330. Rich v. Tuckerman, 121 Mass. 222" court="Mass." date_filed="1876-11-29" href="https://app.midpage.ai/document/rich-v-tuckerman-6418679?utm_source=webapp" opinion_id="6418679">121 Mass. 222. Leach v. Leach, 238 Mass. 100" court="Mass." date_filed="1921-03-04" href="https://app.midpage.ai/document/leach-v-leach-6435399?utm_source=webapp" opinion_id="6435399">238 Mass. 100.
Decrees are to be entered overruling the demurrers and adjudging the plea insufficient.
So ordered.