172 Mass. 356 | Mass. | 1899
Under the agreed statement of facts on which this case was determined in the Superior Court, the only question submitted is whether or not the special statute of limitations of actions against executors and administrators is a bar to the plaintiffs’ claim, etc. The plaintiffs sue here upon a judgment against the United States Savings Bank, a corporation established under the laws of the State of Kansas, recovered in the District Court of Shawnee County in Kansas on October 26,1895, on which execution issued and was returned “ wholly unsatisfied ” in November, 1895. The writ in that action was dated August 23, 1895. The plaintiffs are the assignees of certain certificates of deposit issued by the bank to eight different persons, who at different times from December 20, 1890, to July 6,1891, deposited with the bank the sums of money represented
■The bank carried on its business in Topeka, Kansas, and, as appears in the agreed statement, it suspended payment of its debts and deposits in March, 1891, and afterwards resumed payment in July, 1891, and “on September 17, 1891, it again suspended payment, and on September 19, 1891, a receiver of said corporation was duly appointed by the court of Kansas, and thereafter the assets of said bank were duly turned into cash, and distributed by said receiver among the bank’s creditors; that the assets of said bank were insufficient to pay in full the claims of the depositors, the last dividend being paid June 4th, 1894; that said receiver applied all the assets of said bank to the payment of its liabilities, and was finally discharged on September 4th, 1894.”
Frederick C. Sanford of Nantucket, of whose will the defendant is executor, died on August 13, 1890, leaving a will which was duly proved and allowed in the Probate Court of the county of Nantucket, and of which the defendant was appointed executor on November 10,1891, and on that date he gave bond according to law, and afterwards he duly published notice of his appointment, and returned affidavit thereof to said Probate Court. The two years of limitation provided in Pub. Sts. c. 136, § 9, therefore expired on November 10,1893. The writ in the present action is dated October 17, 1896.
Sanford at the time of his death owned twenty shares of the capital stock of the bank, of the par value of two thousand dollars. It is to be noticed that the indebtedness of the bank on which the judgment was rendered in the court of Kansas arose after the death of Sanford, but it has been assumed by the counsel of both parties that the liability of his estate is the same as if the indebtedness on the bank had arisen in his lifetime. We express no opinion about this, but we proceed to deal with the single question which, under the agreed statement of facts, has been submitted to us.
The plaintiffs on November 19, 1892, as attorneys for an association of creditors of the bank, wrote a letter to the defendant as executor of the will of Sanford, calling his attention to the liability of the estate of Sanford to the creditors of the bank,
We assume, without considering it, that under the laws of Kansas an assignee of the several choses in action against the bank could sue the bank in the courts of Kansas in his own name, and could join in one action claims assigned by different persons. If, however, the claims of the assignors against the estate of Sanford were barred in this Commonwealth when they were assigned to the plaintiffs, the plaintiffs’ claim as assignees we think is also barred. The plaintiffs as assignees have no greater rights against the estate of Sanford than their assignors would have had if no assignment had been made.
The contention of the defendant is that by §§ 1200 and 1204 of the General Statutes of Kansas of 1889, which are cited in the margin,
We are of opinion that the meaning of the agreed statement of facts is that the bank finally suspended business on September 17, 1891, and that it never resumed business. The agreed facts say that it suspended payment of its debts and deposits; that a receiver of the bank was duly appointed by the court of Kansas; that the assets of the bank were duly turned into cash, and distributed by said receiver among the bank’s creditors; that the assets were insufficient to pay in full the claims of the depositors; that all its assets were applied to the payment of its' liabilities, the last dividend being paid on June 4, 1894; and that the receiver was discharged on September 4,1894. We are of opinion that it appears that the bank “ suspended business for more than a year ” from September 17,1891. We also are of opinion that §§ 1200 and 1204 of the statutes of Kansas are applicable to such a case, and that' after the expiration of said year the creditors of the bank each had a cause of action against the stockholders to enforce their individual liability under the statutes of Kansas. Abbey v. W. B. Grimes Dry Goods Co. 44 Kans. 415. The causes of action of the holders
It is argued on behalf of the plaintiffs that the remedy under said §§ 1200 and 1204 was not intended to be exclusive, but that creditors of the bank also had a remedy under § 1192 of the General Statutes of Kansas of 1889, also cited in the margin;
The extent of the liability of the stockholders is substantially
The causes of action against the estate of Sanford, to which the plaintiffs have succeeded by assignment, were in their original form barred by the special statute of limitations before they were assigned to the plaintiffs. We think that the plaintiffs cannot escape this bar by bringing a suit against the corporation in the courts of Kansas, and then bringing an action here on the judgment there obtained. See Stilphen v. Ware, 45 Cal. 110. The special statute of limitation of actions against the representatives of the estates of deceased persons was enacted for the purpose of insuring the speedy settlement of the estates. All causes of action which have accrued within the time limited must be prosecuted within that time or they are barred. • An executor or administrator has no power to waive the special statute of limitations. Lamson v. Schutt, 4 Allen, 359. Wells v. Child, 12 Allen, 333. Robinson v. Hodge, 117 Mass. 222.
The judgment of the Superior Court for the plaintiffs must be reversed, and there must be judgment for the defendant.
So ordered.
These sections are as follows:
“ 1200. A corporation is dissolved, first, by the expiration of the time limited in its charter; second, by a judgment of dissolution rendered by a court of competent jurisdiction ; but any such corporation shall be deemed to be dissolved for the purpose of enabling any creditors of such corporation to prosecute suits against the stockholders thereof to enforce their individual liability, if it be shown that such corporation has suspended business for more than one year, or that any corporation now so suspended from business shall for three months after the passage of this act fail to resume its usual and ordinary business.
This section is as follows: “If any execution shall have been issued against the property or effects of a corporation, except a railway or a religious or charitable corporation, and there cannot he found any property whereon to levy such execution, then execution may he issued against any of the stockholders, to an extent equal in amount to the amount of stock by him or her owned, together with any amount unpaid thereon; but no execution shall issue against any stockholder, except upon an order of the court in which the action, suit, or other proceeding shall have been brought or instituted, made upon motion in open court, after reasonable notice in writing to the person or persons sought to be charged; and, upon such motion, such court may order execution to issue accordingly; or the plaintiff in the execution may proceed by action to charge the stockholders with the amount of his judgment.”