Lockwood v. United States Steel Corp.

138 N.Y.S. 725 | N.Y. App. Div. | 1912

Scott, J.:

The sole question raised by the appellant is whether or not under the circumstances above detailed the defendant is under an. obligation to transfer the stock in question on its books. If the refusal to transfer was wrongful an action for damages is an appropriate remedy (Kortright v. Buffalo Commercial Bank, 20 Wend. 91), and the plaintiff, as transferrer of the stock, is entitled to maintain the action, for it is as much the right and duty of the transferrer of shares of stock to procure the proper transfer to be made upon the books, of the corporation, as it is of the transferee. (Webster v. Upton, 91 U. S. 65; Johnston v. Laflin, 103 id. 800.)

The question remains whether or not plaintiff ever acquired such authority respecting the forty shares of stock as enables him to make a valid transfer thereof, which the defendant is bound' to recognize and give effect to. Upon the precise question we have been referred to no direct authority, and have been unable ourselves to find any, although it is stated by counsel that the situation presented by the facts above recited is one which recurs with increasing frequency. The question is not only whether or not the plaintiff as the executor named in the will of Mary Adelaide Zuill has become invested with title to the stock, but whether Lhe has become invested with authority to reduce it to possession and otherwise deal with it. It has frequently 'been held in tax cases that the executor’s title to the personal property of his decedent comes not from the letters testamentary, but from the will itself (People ex rel. Gould v. Barker, 150 N. Y. 52, 57), but before he can exercise acts of ownership he must cause the will to be probated and letters testamentary to be issued. As was said by the Court of Appeals in Matter of Butler (38 N. Y. 397, 400): “Upon the death of a testator his personal property [vests]-in his executor immediately, and the whole of it. Before he can act the will must be proved and the executor must qualify. It is, however, the will itself and not its probate or his qualification that transfers the title.” The real question now to be considered, therefore, is as to the plaintiff’s authority to act respecting the stock, and that must he determined with reference to the authority imparted by the probate of the will in New York, and the issue of letters testamentary in that State.

Letters testamentary are issued for two reasons. They may be issued at the place of the testator’s domicile, the jurisdiction to issue them being found in the fact of the domicile. Such letters are. known as domiciliary letters. Or they may be issued at any place wherein personal property of the testator is found, the jurisdiction to issue them being found in the situs of the property to be administered. Suqh letters are known as ancillary letters, and they are none the less ancillary because no letters testamentary may have been issued in the jurisdiction of the domicile. (18 Cyc. 1222 and notes.) The ancillary administration is not dependent upon the domiciliary, but each is distinct and independent within the limits of its exclusive authority. Strictly, speaking, an executor or administrator, whether domiciliary or ancillary, has as matter of right no extraterritorial authority; but in the case of a domiciliary executor it is established by comity between States and nations (and in some States by statute) that while no one beyond the jurisdiction of his appointment is bound to recognize him, yet, that persons outside the jurisdiction who deal with him will be protected at least until a demand is made upon them by a local executor. This recognition of the title of a domiciliary executor outside the jurisdiction of his appointment rests upon the rule of law that the situs of personal property is deemed to be at the domicile of the testator, and that the courts of the domicile have assumed jurisdiction over it by the issue of the letters testamentary.

The rule as to the authority of an ancillary executor is quite different. The jurisdiction to appoint him rests upon the fact that the actual situs of the testator’s personal estate is within the State or county issuing the ancillary letters, and it is only over such property that the court issuing the letters has assumed jurisdiction. The authority of the ancillary executor is, therefore, strictly limited to personal property within the jurisdiction of his appointment, that is to say, to property having a situs within that jurisdiction, and this is the limit of plaintiff’s authority, since his appointment is ancillary and not domiciliary.

The only remaining question is as to the situs of the property represented by the certificate of stock in the defendant corporation. That question is not open to debate in this State. The stock represents the interest which the shareholder has in the capital and net earnings of the corporation. This certificate of stock may be regarded as having its situs either at the domicile of the deceased, because it is a chose in action, or at the domicile of the corporation, because the shares represent an integral part of the property of the corporation, and this is quite irrespective of the question where the certificate itself may physically be. (Jermain v. L. S. & M. S. R. Co., 91 N. Y. 492; Matter of Enston, 113 id. 181; Matter of James, 144 id. 12; Matter of Bronson, 150 id. 1.) It follows that plaintiff’s ancillary letters granted in the State of New York conferred upon him no authority to demand a transfer of his decedent’s stock by the defendant, a New Jersey corporation, and that his complaint states no cause of action. Hopper v. Hopper (53 Hun, 394; affd., 125 N. Y. 400) is not to the contrary. That was an action against not by an ancillary executor appointed in this State, and the court went no further than to hold that such an executor might be sued in this State in a transitory action notwithstanding he had no assets of the estate in his hands. Nor is it an answer to say that an ancillary executor appointed in this State may sue here a non-resident debtor of the«estate if he can obtain jurisdiction by the service of process here. (Fox v. Carr, 16 Hun, 434.) The demurrer in the present case goes further than to merely challenge the right of the plaintiff to sue this defendant in this jurisdiction. It goes to his whole cause of action and challenges his right to sue anywhere. If he has no authority to make a demand with which the defendant was bound to comply he makes no case for the recovery of damages for the refusal.

The judgment appealed from must, therefore, be reversed and the demurrer sustained, with costs to appellant in this court and the court below. The objection to the complaint appears to be fundamental, and it is not apparent that any amendment will aid the plaintiff, but if he desires to amend his complaint he may have leave to do so within twenty days upon payment of costs in this court and in the court below.

Ingraham, P. J., McLaughlin and Dowling, JJ., concurred.

Judgment reversed, with costs, and demurrer sustained, with costs, with leave to plaintiff to amend complaint on payment of costs in this court and in the court below.