294 Mass. 173 | Mass. | 1936
This is a petition brought on March 20, 1934, in the Probate Court under G. L. (Ter. Ed.) c. 197, § 13, by The First National Bank of Boston against the execu
The question for decision is whether the Probate Court had power to make the decree upon any evidence which might have been presented under the petition. Conley v. Fenelon, 266 Mass. 340, 342. The case, therefore, is to be considered on the basis of the allegations of the petition.
Under G. L. (Ter. Ed.) c. 197, § 13, relief by way of an order for the retention of assets can be had by a “creditor of the deceased, whose right of action does not accrue within one year after the giving of the administration bond,” that is, within the period of limitation fixed by G. L. (Ter. Ed.) c. 197, § 9, or “within such further time as may be allowed by any extension granted under section nine” — or in certain cases under another section — if such creditor presents “his claim to the probate court at any time before the estate is fully administered” and “upon examination thereof, the court finds that such claim is or may become justly due from the estate.” (The provisions for extension of time are not material in this proceeding.) On the allegations of the petition the deceased died February 11, 1933, the period of one year after the giving of the bond expired March 22, 1934, and the estate has not been fully administered. The respondents contend that the petitioner’s right of action, if any, accrued before March 22, 1934, and, consequently, with respect to such right of action, the petitioner is not within the statute.
Material facts alleged in the petition with respect to the petitioner’s right of action are these: The deceased was the real owner of shares of stock in The Atlantic National Bank of Boston, herein referred to as the bank, from May 6, 1932, until his death. “Pursuant to an agreement dated
At a meeting of the shareholders of the bank held on June 24, 1932, it was voted by holders of more than two thirds of the shares of said bank “to go into liquidation in accordance with Revised Statutes of the United States, sections 5220 and 5221 (Title 12, United States Code, sections 181 and 182).” The “necessary proceedings required by said Revised Statutes of the United States have been and are being taken by said The Atlantic National Bank of Boston.”
The “petitioner, as a creditor of said The Atlantic Na
A “substantial part of the assets transferred to . . . [the petitioner] by The Atlantic National Bank as aforesaid is still in process of liquidation and . . . the final results of such liquidation will not be known for some time, . . . such assets may be insufficient to repay the balance of the liabilities, as such liabilities have been defined in said agreement, assumed by . . . [the] petitioner not heretofore paid, and ... if such assets so prove insufficient, The Atlantic National Bank will be unable on or before April 30, 1935, (or on or before such later date to which such date may be extended . . .) to pay the balance of such liabilities in accordance with its promise.”
The decree was'right.
The deceased as a shareholder of the bank was subject to U. S. Rev. Sts. § 5151, (U. S. C. Title 12, § 63,) which provides that “The shareholders of every national banking association shall be held individually responsible . . . for all contracts, debts, and engagements of such association, to the extent of the amount of their stock therein, at the par value thereof, in addition to the amount invested in such shares.” See also act of December 23, 1913, c. 6, § 23, 38 U. S. Sts. at Large, 273 (U. S. C. Title 12, § 64). The contract between the petitioner and the bank was made before the shareholders of the bank voted that it go into liquidation in accordance with the statute providing for “Voluntary dissolution.” U. S. Rev. Sts. § 5220 (U. S. C. Title 12, § 181). The validity of this contract is not attacked by the respondents. Similar contracts have been held valid. And shareholders are individually responsible for obligations of
However, the obligation of the bank under the contract, relied on by the petitioner as imposing individual liability on the estate of the deceased, was to pay to the petitioner on or before April 30, 1935 (or some later date to which by the terms of the contract time for payment might be extended), the unpaid balance of the liabilities of the bank assumed by the petitioner. This obligation was created during the lifetime of the deceased. But, according to the terms of the contract, the time for performance of this obligation would not arrive and, consequently, no right of action against the bank for breach thereof would accrue to the petitioner until more than one year had expired after the respondents gave bond as executors. Moreover, the voluntary liquidation of the bank was not a breach of this obligation for which a right of action against the bank accrued immediately to the petitioner. The vote for voluntary liquidation did not put an end to the corporate existence of the bank (National Bank v. Insurance Co. 104 U. S. 54, 73-74, 76) or render performance of the contract impossible according to its terms, though such vote imposed limitations on the bank’s doing any new business not incidental to liquidation. Schrader v. Manufacturers’ National Bank of Chicago, 133 U. S. 67, 75-76. The vote for voluntary liquidation did not import insolvency of the bank (see City National Bank of Huron v. Fuller, 52 Fed. Rep. (2d) 870, 873), whatever would be the effect of such insolvency. Nor do allegations of the petition show that the bank has been judicially pronounced insolvent, that in fact it is insolvent or that a receiver thereof has been appointed under the act of June 30, 1876, c. 156, § 1, 19 U. S. Sts. at Large, 63 (U. S. C. Title 12, § 191). See Hightower v. American National Bank of Macon, 263 U. S. 351, 360. Lovell v. St. Louis Mutual Life Ins. Co. 111 U. S. 264, 274, and Central Trust Co. v. Chicago Auditorium Association, 240 U. S. 581, 589, relied on by the respondents, are distinguishable. In spite, therefore, of the vote for voluntary
No contention is made that G. L. (Ter. Ed.) c. 197, § 13, as a part or modification of the State statute of limitations of actions against executors, is inapplicable to the individual liability of a deceased shareholder of a national bank for its “contracts, debts, and engagements” because such individual liability is created by a Federal statute. See, however, McDonald v. Thompson, 184 U. S. 71; McClaine v. Rankin, 197 U. S. 154, 158; Forrest v. Jack, 294 U. S. 158. And though the individual liability is statutory in origin it is so far contractual in nature that the petitioner, if entitled to enforce the liability, is a “creditor of the deceased” within the broad meaning of those words as used in § 13. See Union Market National Bank of Watertown v. Gardiner, 276 Mass. 490, 494. See also Richmond v. Irons, 121 U. S. 27, 55-56; Matteson v. Dent, 176 U. S. 521, 526-527; Whitman v. Oxford National Bank, 176 U. S. 559; McDonald v. Thompson, 184 U. S. 71, 74; McClaine v. Rankin, 197 U. S. 154, 162. Furthermore, even if the individual liability of the deceased shareholder is contingent it is not so indefinite as to fall outside the scope of the section. Electric Welding Co. v. Fitz, 215 Mass. 315, 318. See also Peabody v. Allen, 194 Mass. 345; Converse v. Nichols, 202 Mass. 270, 275-276. And by clear indications in the section a person may be a “creditor of the deceased” within its terms even before his claim against the deceased has matured. Gilman v. Taylor, 266 Mass. 346, 349.
The respondents contend, however, that in the case, as here, of voluntary liquidation, the right of action of a creditor of a national bank to enforce the individual liability of its shareholders for its “contracts, debts, and engagements” accrues immediately upon the act of liquidation with respect both to obligations of the bank which are
There is a difference between the method of enforcing the individual liability of shareholders of a national banking association for its obligations in the case of involuntary liquidation and that in the case of voluntary liquidation. See Richmond v. Irons, 121 U. S. 27, 47-51; McDonald v. Thompson, 184 U. S. 71, 75-76. In the case of involuntary liquidation “No cause of action arises until the assessment is made by the Comptroller and, so far as concerns the need and amount, his findings are conclusive.” Forrest v. Jack, 294 U. S. 158, 162. On the other hand, no such assessment is required in the case of voluntary liquidation, but “when any national banking association shall have gone into liquidation under the provisions of section five thousand two hundred and twenty of . . . [the Rev. Sts. (U. S. C. Title 12, § 181)] the individual liability of the shareholders provided for by section fifty-one hundred and fifty-one of said statutes [U. S. C. Title 12, § 63] may be enforced by any creditor of such association, by bill in equity, in the nature of a creditor’s bill, brought by such creditor on behalf of himself and of all other creditors of. the association, against the shareholders thereof,” in the United States District Court. Act of June 30, 1876, c. 156, § 2, 19 U. S. Sts. at Large, 63 (U. S. C. Title 12, § 65).
The argument for the respondents proceeds on the ground that the right under this Federal statute of a creditor of a bank in voluntary liquidation to bring a “bill in equity, in the nature of a creditor’s bill” is a “right of action” within the meaning of G. L. (Ter. Ed.) c. 197, § 13, and that such a bill in equity could have been brought by the petitioner immediately upon the vote for voluntary liquidation. The question whether the petitioner could have brought such a bill at any time prior to the expiration of
The individual liability of shareholders in a national bank is “conditional,” and “secondary” to the liabilities of such bank. McClaine v. Rankin, 197 U. S. 154, 160, 161-162. And it was said in National Bank v. Insurance Co. 104 U. S. 54, 76, that the statute authorizing creditors to bring a bill in equity in the nature of a creditor’s bill “seems to confirm the idea that for the purpose of being sued, in order judicially to determine the question of disputed liability . . . [the bank] continues to exist, and the remedy against the shareholders is added as a means of execution, in case the corporate assets have in the mean time been otherwise applied or shown to have been insufficient.”
In the leading case of Richmond v. Irons, 121 U. S. 27, where, however, the bill was brought by a judgment creditor, there are significant statements in respect to the statutory bill in equity. “The intention of Congress evidently was to provide ample and effective remedies in all the specified cases for the protection of the public and the payment of creditors, by the application of the assets of the bank and the enforcement of the liability of the stockholders. . . . The two subjects of applying the assets of the bank and enforcing the liability of the stockholders, however otherwise distinct, are by the statute made connected parts of the whole series of transactions which constitute the liquidation of the affairs of the bank. It was, therefore, proper to describe the bill to be filed by and on behalf of creditors as in the nature of a creditors’ bill so as to enlarge the scope and purpose of a bill that might be more strictly limited as .a creditors’ bill merely.” Page 50. The bill “is to be considered from the date of its filing, as a bill on behalf of all the creditors of the bank who should
These statements in respect to the nature and incidents of the statutory proceeding naturally import that a person cannot bring a bill in equity under the statute unless at the time he attempts to bring it he owns a valid claim against the bank of which he can make proof, that is, unless he has a present right of action against the bank on a matured claim. This is clearly true of an ordinary creditor’s suit brought under general equity jurisdiction to reach and apply equitable assets of the debtor to the payment of his debts. Indeed the “true rule in equity is that under usual circumstances a creditor’s bill may not be brought except by a judgment creditor after a return of 'nulla bona’ on execution” (Harkin v. Brundage, 276 U. S. 36, 52), though
It is urged, however, by the respondents as against the conclusion above reached, that the bill in equity authorized by the statute is not in the nature of a creditor’s bill to reach equitable assets of a debtor extended to apply to the individual liability of shareholders — though such liability is not strictly an asset of the bank (Richmond v. Irons, 121
The respondents contend further, in substance, that if, because of the unmatured and contingent nature of the petitioner’s claim, the petitioner could not have brought a statutory bill in equity before the expiration of one year after the respondents gave bond as executors, the petitioner has no right whatever against the shareholders on the ground that such a bill can be brought only by a person who was a creditor at the time of the vote for voluntary liquidation entitled to bring such a bill at that time.. This contention is not supported by the decided cases. Richmond v. Irons, 121 U. S. 27, 52, goes no further with respect to the person bringing the bill than to require that such person be the owner of a valid claim against the bank —• for which the individual shareholders are liable — provable as of the time the bill was brought. And in Wyman v. Wallace, 201 U. S. 230, the claim of the plaintiff on which the bill was brought, though arising, as here, out of an
Since it does not appear that any creditor having a matured claim has brought a statutory bill, no question arises as to the effect on the petitioner’s rights of such a bill brought before the petitioner’s claim against the bank matured so as to be actionable. But no reason appears why the ordinary rule applicable to a creditor’s suit in which a receiver has been appointed should not apply, namely, that proof could be made of a claim previously unmatured and contingent if such claim “matures within a reasonable time before distribution can be made.” William Filene’s Sons Co. v. Weed, 245 U. S. 597, 602. International Paper Co. v. Priscilla Co. 281 Mass. 22, 36. A contrary view is not required by the language of the opinion in Richmond v. Irons, 121 U. S. 27, 54, to the effect that a creditor who proves his claim in a pending statutory suit is not only “entitled to come in under the decree,” but also “has a right to be considered as a party complainant from the beginning by relation to the time of filing the bill.” The court, as disclosed by other parts of the opinion, was there speaking with reference to matured claims and the effect thereon of a statute of limitations.
The agreement between the petitioner and the bank that the “promise and liability of said The Atlantic National Bank of Boston should constitute an existing and accrued liability, debt, contract and engagement of said The Atlantic National Bank of Boston and the aforesaid statutory liability of shareholders of said The Atlantic National Bank of Boston for such debt, contract and engagement under the laws" of the United States shall be and remain in full force and effect until such debt, contract or engagement shall have been paid in full” — whatever its effect in general — did not have the effect of advancing the time of maturity of the liability of the bank or of the secondary liability of its shareholders.. This agreement recognized that the con
That the petitioner is a “creditor” within the broad meaning of that word as used in G. L. (Ter. Ed.) c. 197, § 13, does not import that it is also a “creditor” entitled to bring a “bill in equity, in the nature of a creditor’s bill” within the meaning of the Federal statute. The words of a statute are to be construed in the light of the general purpose of the statute under consideration. Commonwealth v. Welosky, 276 Mass. 398, 401.
It follows from what has been said that, whatever rights the petitioner may have had to protect its unmatured and contingent claim against the bank, it had no “right of action” within the meaning of G. L. (Ter. Ed.) c. 197, § 13, against the respondents before the expiration of a year from their giving bonds as executors.
The respondents make the further contention that such a contract as was made between the petitioner and the bank could not have the effect of deferring the accrual of the liability of the shareholders of the bank for the “contracts, debts, and engagements” of such bank to a date subsequent to the act of liquidation. The principle stated in Richmond v. Irons, 121 U. S. 27, 61, that it "is not within the power of the officers of the bank, without express authority, by such means to prolong indefinitely an obligation on the part of the shareholders,” relied on by the respondents, is inapplicable to the contract here involved. That such a contract can be made is settled by the cases of Wyman v. Wallace, 201 U. S. 230, and Hightower v. American National Bank of Macon, 263 U. S. 351. This contract does not defer indefinitely or for an unreasonable time the accrual of the stockholders' liability.
It may be added by way of caution that the decision here made does not purport to determine finally the lia
Decree affirmed.