41 Barb. 481 | N.Y. Sup. Ct. | 1864
It is not necessary to examine or determine the question whether the personal estate of the testator, on his death, vested immediately in his executors, the plaintiff’s assignors, and before the will was proved, and they qualified as executors. The bank put its refusal to permit the transfer solely on the ground that letters testamentary, or of administration, had not been taken out in the state of New York. Before, the assignment to the plaintiff, and the refusal of the hank to permit the transfer to him under the power of attorney, the executors had exhibited to the officers of the hank documentary evidence of their title as foreign executors. The ground upon which the hank refused to permit the transfer to the plaintiff, and the ground upon which the counsel of the hank upon the argument insisted it was justified in so refusing, was, substantially, that the hank was not obliged to recognize the title of a foreign executor. In this I think the hank and its counsel were mistaken.
The cases in this state only show, I think, that our courts will not recognize the right of a foreign executor or administrator to sue in the courts of this state under or by virtue of his foreign letters testamentary or of administration. (See
I suppose there is no reasonable ground for saying that the title to the testator’s bank stock in this state, as well as to all his chattels and personal estate, wherever situate or being, vested in his executors, either by the will on his death, or by the issuing of letters testamentary to them, or both. Having the title to the bank stock in question, they had a right to assign it to the plaintiff, and to execute the power of attorney authorizing the transfer to him.
I do not know that it has ever been questioned but that even a foreign statutory bankrupt proceeding passed the title to the bankrupt’s property here, as between the bankrupt and his assignees. The cases in this state only go to show, I think, that the plaintiff’s assignors, as Connecticut executors, could not have maintained an action against the bank for refusing to permit them to transfer the shares. Perhaps you may say that the bank was not legally bound to permit the transfer on the demand of the executors, before the assignment to the plaintiff, because the executors could not as foreign executors bring an action for such refusal, in their own names as such executors; but if the executors could and did transfer the shares of stock to the plaintiffs, and could and did execute the power of attorney for its transfer on the transfer books, the bank, I think, was bound to recognize the plaintiff’s title to the stock and his right to have it transferred to him on the transfer books; and for refusing to permit such transfer, I think the bank is liable in this action, brought in the name of the assignee of the executors.
It is utterly immaterial whether the assignment to the plaintiff, and the power of attorney for the transfer of the stock, were executed in Connecticut or in this state.
The judgment should be affirmed, with costs.
Leonard, J. The law of the foreign domicil of the testator and the executors governs in respect to the transfer of
Clerks, J. also concurred.
Judgment affirmed.
Leonard, Clerke and Sutherland, Justices.]
