Bacon v. Barber

• Decision Date: 02 May 1939
• Docket Number: No. 1111.,1111.
• Parties: BACON v. BARBER.
• Court: Vermont Supreme Court

6 A.2d 9

BACON

v. BARBER.

No. 1111.

Supreme Court of Vermont. Windham.

May 2, 1939.

Exceptions from Windham County Court; Charles B. Adams, Judge.

Action by John D. Bacon, receiver of the National Bank of Bellows Falls, against Richard Robbins Barber to recover an assessment upon shares of stock of the bank. Judgment based on directed verdict for defendant, and plaintiff brings exceptions.

Reversed and remanded.

Argued before MOULTON, C. J., and SHERBURNE, BUTTLES, STURTEVANT, and JEFFORDS, JJ.

Samuel H. Crosby, of White River Junction, and James Brownlee, of Springfield, for plaintiff.

Frank E. Barber and F. Elliott Barber, Jr., both of Brattleboro, for defendant.

MOULTON, Chief Justice.

This is an action brought by the plaintiff as receiver of the insolvent National Bank of Bellows Falls to recover an assessment duly levied upon the shares of the stock of that institution, of which the defendant is claimed to have been the owner on the day upon which the bank was closed. The defendant denies that he was then the owner. The cause was tried by jury, and at the close of plaintiff's evidence the trial court directed a verdict for the defendant, to which the plaintiff excepted.

There seems to be little dispute concerning the facts which the evidence tended to show. The defendant's uncle, Charles N. Robbins, died testate, his will, dated August 8, 1922, containing the following provision: "My stock in the Vermont National Bank of Brattleboro, and stock in the National Bank of Bellows Falls, Vt., I give, devise and bequeath as follows, viz: The use and income of the same to my said wife during her natural life; then use and income to my daughter, Mary Irene R. Washer during the term of her natural life—After the decease of my said daughter I give and bequeath said bank stocks to Richard Robbins Barber [the defendant] now of Montpelier, Vermont, to him and his heirs forever—". It appears by the defendant's answer that the will was filed in the probate court on August 17, 1923, and admitted to probate. The Vermont Peoples National Bank of Brattleboro was appointed trustee in 1924. The defendant was, at the date of the will, a minor, but attained his majority in 1926. Mrs. Robbins died, as appears from the defendant's answer, in December, 1931, and Irene Washer died on February 27, 1933. The stock was carried on the books of the Bellows Falls Bank in the name of the "Vermont Peoples National Bank, as trustee of the estate of Charles N. Robbins." The final account of the trustee was filed in and approved by the probate court for the District of Marlboro on June 21, 1933. The certificates of stock in the Bellows Falls Bank could not be transferred to the defendant on the books of that institution because of its insolvency, and were sent by the trustee to the defendant by registered mail on January 13, 1936; the other bank stock, duly transferred to him, was also sent in the envelope. The defendant received the certificates and has never returned them.

The National Bank of Bellows Falls was closed on March 4, 1933. A conservator was appointed, the assessment levied by the comptroller of the currency on March 12, 1934, and notice thereof was sent to the Vermont Peoples' National Bank, as trustee, on March 20, 1934. The reply acknowledged receipt, and informed the conservator that there were no assets with which to pay the assessment.

The plaintiff became receiver on August 31, 1937. He wrote several letters to the defendant concerning the payment of the assessment, and held a telephonic conversation with him about the middle of April, 1938, regarding the same matter. No payment having been made, on April 18, 1938, a notice was sent by registered mail which was returned to the receiver unopened.

The liability which is sought to be enforced arises under the "Revised Statutes of the United States, § 5151, sec. 63 and sec. 64, tit. 12, U.S.C.A., which provide that "the stockholders of every national banking association shall be held individually responsible for all contracts, debts, and engagements of such association, each to the amount of his stock therein, at the par value thereof in addition to the amount invested in such stock." This statute "contemplates that on every share of stock held in a national bank some one shall be legally liable for assessment." Riley v. Bondi, 8 Cir., 64 F.2d 515, 517; McNair v. Darragh, 8 Cir., 31 F.2d 906, 907. The liability is imposed by the statute as an incident of the ownership—Laurent v. Anderson, 6 Cir., 70 F.2d 819, 823; Scott v. Latimer, 8 Cir., 89 F. 843, 852; Christopher v. Norvell, 201 U.S. 216, 225, 26 S.Ct. 502, 50 L.Ed. 732, 736, 5 Ann.Cas. 740. The assessment made by the comptroller of the currency is conclusive as to its necessity and the amount to be collected. Christopher v. Norvell, supra, 201 U.S. at page 222, 26 S.Ct. at page 503, '50 L.Ed, at page 735, 5 Ann.Cas. 740; Stephens v. Hamilton, 7 Cir., 81 F.2d 324, 326; Miller v. Stock, 3 Cir., 65 F.2d 773, 774, 90 A.L.R. 1061. It is the duty of the receiver to enforce the individual liability of the stockholders. U.S.Rev.Stat. § 5234, sec. 192, tit. 12, U.S.C.A.; Barbour v. Thomas, D.C., 7 F.Supp. 271, 276.

The fact that the stock was not registered in the name of the defendant, but in the name of the Vermont Peoples National Bank as trustee is not conclusive. "That the actual owner of the stock may be held for the assessment, although his name does not appear upon the transfer books of the bank, is well settled." Early v. Richardson, 280 U.S. 496, 499, 50 S.Ct. 176, 177, 74 L.Ed. 575, 69 A.L.R. 658; Forrest v. Jack, 294 U.S. 158, 162, 5'5 S.Ct. 370, 372, 79 L.Ed. 829; 96 A.L.R. 1457, rehearing denied 294 U.S. 733, 55 S.Ct. 543, 79 L.Ed. 1262; Ohio Valley Nat'l Bank v. Hulitt, 204 U.S. 162, 167, 27 S.Ct. 179, 51 L.Ed. 423, 427; Pauly v. State Loan & Trust Co., 165 U.S. 606, 619, 17 S.Ct. 465, 41 L.Ed. 844, 849. See, also, Laurent v. Anderson, 6 Cir., 70 F.2d 819, 823; O'Keefe v. Pearson, 1 Cir., 73 F.2d 673, 97 A.L.R. 1243, 1247; Houghton v. Hubbell, 1 Cir., 91 F. 453, 455; Lucas v. Coe, C.C., 86 F. 972, 974; Keyes v. American Life, etc., Ins. Co., D.C., 1 F.Supp. 512, 513; Goess v. Brown, D.C., 12 F.Supp. 517, 518; Slaughter v. Quigley, D.C., 9 F.Supp. 130. Accordingly it has been held that where the stock is registered in the name of a holding company or of a trustee, the person having the beneficial interest is liable for the assessment. Metropolitan Holding Co. v. Snyder, 8 Cir., 79 F.2d 263, 264, 103 A.L.R. 912; McNair v. Darragh, 8 Cir., 31 F.2d 906, 908; Keyes v. American Life, etc., Ins. Co., supra. And in Forrest v. Jack, supra, the widow of the testator having a life interest in the stock, which was not registered in her name, was said to be the actual owner.

By his uncle's will the defendant took an interest in remainder in the trust estate, which vested in him immediately upon the death of the testator, although the enjoyment was postponed until the death of the second life tenant. In re Carter's Will, 99 Vt. 480, 485, 134 A. 581, 61 A.L.R. 1005; In re Will of Mansur, 98 Vt. 296, 298, 127 A. 297; In re Robinson's Estate, 90 Vt. 328, 333, 334, 98 A. 826; Harris v. Harris' Estate, 82 Vt. 199, 205, 72 A. 912; Burton v. Provost, 75 Vt. 199, 201, 54 A. 189; In re Tucker's Will, 63 Vt. 104, 105, 21 A. 272, 25 Am.St.Rep. 743; Jones, Adm'r v. Knappen, 63 Vt. 391, 394, 22 A. 630, 14 L.R.A. 293; Weatherhead v. Stoddard, 58 Vt. 623, 629, 5 A. '517, 56 Am.Rep. 573. His acceptance of the bequest is to be presumed. The rule is that prima facie every estate, whether given by will or otherwise is supposed to be beneficial to the person to whom it is given, and, upon the ground of implied benefit, he is presumed to assent to it, even though he may be ignorant of the transaction, until the contrary appears. Church's Ex'r v. Church's Estate, 80 Vt. 228, 232, 67 A. 549; Harris v. Harris' Estate, 82 Vt. 199, 210, 72 A. 912; Crossman v. Crossman's Estate, 100 Vt. 407, 413, 138 A. 730; Tarr v. Robinson, 158 Pa. 60, 62, 27 A. 859, 860. And there is, indeed, nothing here to show that the bequest in remainder, which, as we have seen, vested eo instante upon the death of the testator, was not at that time in fact, as well as by implication, beneficial to the recipient. This presumption of acceptance is not conclusive, for a legatee may renounce the provision in his favor and leave the title as if the gift had not been made. In re Howe's Estate, 112 N.J.Eq. 17, 163 A. 234, 237; Albany Hospital v. Albany Guardian Soc'y, 214 N.Y. 435, 440, 108 N.E.' 812, Ann.Cas. 1915D, 119; Brown v. O'Keefe, 300 U.S. 598, 602, 57 S.Ct. 543, 546, 81 L.Ed. 827. But, while having in itself no probative force, the presumption has the effect of casting upon the party claiming non-acceptance the duty of going forward with evidence in support of his contention. Tyrrell v. Prudential Ins. Co., 109 Vt. 6, 23, 192 A. 184, 115 A.L.R. 392; State v. Lizotte, 109 Vt. 378, 387, 388, 197 A. 396. In this meaning of the phrase, the burden of proof is upon him. Tarr v. Robinson, supra; Chilcoat v. Reid, 154 Md. 378, 140 A. 100, 104. Recognition of this principle is found in Church's Ex'r v. Church's Estate, supra, Harris v. Harris' Estate, supra, and Crossman v. Crossman's Estate, supra, wherein it is said that acceptance is presumed "until the contrary appears." [100 Vt. 407, 138 A. 732.]

The right of renunciation must, however, be exercised within a reasonable time after opportunity is afforded the donee to do so; and must be shown by some positive, overt act, or course of conduct. In re Howe's Estate, supra. Since the defendant was a minor at the time of his uncle's death, he had a reasonable time after reaching majority in which to reject the bequest. See Spencer v. Lyman Falls Power Co., 109 Vt. 294, 301, 196 A. 276. It is argued in his behalf that he was not aware of the terms of the will until he received the certificates of stock from the...