87 F. 840 | U.S. Circuit Court for the District of Southern Ohio | 1898
The plaintiff in this suit, who is the receiver of an insolvent national bank, sued Ihe defendant, as executrix of the estate of John B. Finke, to recover an assessment on certain stock of said bank, which he held in Ms lifetime, said assessment having been found necessary in liquidation of the affairs of the bank for the purpose of paying its debts. John B. Finke died two years or more before the failure of the bank, having left a will, wherein he made Ms wife, Catherine M. Finke, Ms sole devisee and legatee, subject, of course, to the payment of Ms debts, and made her the executrix of his will. The will was probated, and Catherine M. Finke was confirmed as executrix, qualified, and entered upon the discharge of her duties as such. By the second paragraph of her answer, she sets up in defense the matters above recited, and states that, upon having qualified as executrix, she at once (altered upon, and has ever since been, and is now, discharging, the duties of said trust; that she duly elected to take under the will of her said husband, according to the law of the state of Ohio, instead of standing on her rights under the law of that state as the widow of the deceased; and that she took possession of the assets of the estate, converted them into money, and paid the debts of the estate, — that is to say, as must be inferred from that which next follows, she converted some of the assets into money, and paid the debts, for she further proceeds to state that she is now the •‘owner and holder, and entitled to, and in possession of, all the assets belonging to the estate of the said John B. Finke not heretofore disposed of by her; and that she is now, and was at the time of the appointment of the receiver of the Second National Bank of Grand Porks, N. D., and before said bank became insolvent, the owner and holder of the twenty-five shares of stock formerly owned by ihe said John B. Finke; and that all the indebtedness of the said estate not secured hv mortgage on real estate was paid or secured to be paid by her long prior to the appointment of plaintiff as receiver."’ The plaintiff demurs to this paragraph of the answer, insisting that it does not set up a valid defense.
The decisive question in the case is: Who was the owner of this bank stock at the date of the failure of the bank and the order- of ihe comptroller putting it in the course of liquidation? It is urged for ihe defendant by her- counsel that, upon the facts stated in this paragraph of the answer, Mrs. Finke was the owner of it in her own
By the general law prevalent in this country, the title of an executor to the decedent’s personal property is the same as that of an administrator; and, under a will whereby the residuum of the testator’s personal property is bequeathed, the legatee does not take title to the specific goods, but only to their proceeds. Unless there is some specific provision in the will to the contrary, the executor takes and holds the personal property, and, in due course, converts it into money, and, upon the settlement of his accounts, the proceeds, if the debts have been paid, are ordered to be paid over to the legatee. The only difference between the distribution when ordered to be made of testate personal property and that which is not testate is that in the former case the will stands for the law in directing the probate court in respect of its order for the disposition of the property, while in the latter case the statute of the state is the guide of the court in the matter. The contention of the defendant involves the idea that it was competent for her, as executrix, to turn this stock over to herself as an individual, and thereby detach it from the assets of the estate; but it is difficult to see how upon any possible conception of the situation it was competent for her to do that. It should be observed, however, that there is no distinct allegation in the second paragraph of the answer that even this was done, and the most that can be said is that she claims that it is a legal consequence of the facts which are pleaded. In some of the states, in Massachusetts for example, there has long been statutory provision giving the right to a residuary devisee and legatee who has become executor to give bond for the payment of debts and legacies; and, by express provision of the statute, the executor is not required to return any inventory, or to present any list of debts or claims, or to settle any account. The bond takes the place of the property, and thereupon the title of the legatee or devisee becomes complete and perfect. But no such statute in the state of Ohio has been brought to my attention, and I suppose none exists. It is not stated in the paragraph of the answer under consideration that such bond was ever given,