71 F. 256 | 1st Cir. | 1895
David Parker, the testator of the defendant below, now plaintiff in error, died February 22, 1887, and the defendant: was qualified as coexecutor oí bis will, March or May, 1887. Prior to and at Ms decease David Parker -was the unquestioned owner of 50 shares of the capital stock of the First National Bank of Wilmington. At his death the bank was solvent. The certificate of stock came into the hands of the executors, and the shares were included in their inventory of Ms estate which was returned to the probate court. They thus accepted them, and by the common law, which prevails in the jurisdiction where they were so qualified, they were tims vested with the legal title to the stock. Bub: equently the coexecutor of the defendant below deceased, leaving him sole surviving executor. In November, 1891, the bank be-cairn' insolvent. December 21, 1891, the comptroller of the currency appointed the plaintiff below its receiver, and May 6, 1892, he ordered the assessment in controversy here. This assessment was for die full par of the stock, so in no event can the jurisdiction at law be properly questioned.
Under the circumstances, the defendant below became in law the owner of the stock, although he held it in Ms capacity as executor, and was hoMen to account for it: as such. He thus became a shareholder, and liable, as such, under section 5151 of the Revised Statutes. Under these circumstances no questions of survivorship of actions or of limitation arise, and the circuit court properly entered judgment against him. The provisions of section 5152, relating to stock held by executors, administrators, guardians, or trustees, are purely supplementary, and are intended only to relieve the classes of persons named therein from execution against their individual assets, and they do not qualify the general rule of liability under section 5151. The plaintiff in error claims that the assets of a testate person under the laws of Massachusetts, where he qualified as executor, are in custodia legis, under authority of the state judicial tribunals, and so are not subject to an execution issued by a federal court. But the question now before us is only as to the validity of the judgment, and not at all as to the manner of its enforcement. The record does not show that any execution has been ordered, and no error has been assigned touching any such matter. The judgment of the circuit court is affirmed, with costs of this court against the plaintiff in error personally.