John D. Bacon, Receiver of the National Bank of Bellows Falls v. Richard Robbins Barber

• Decision Date: 02 May 1939
• Parties: JOHN D. BACON, RECEIVER OF THE NATIONAL BANK OF BELLOWS FALLS v. RICHARD ROBBINS BARBER
• Court: Vermont Supreme Court

6 A.2d 9

110 Vt. 280

JOHN D. BACON, RECEIVER OF THE NATIONAL BANK OF BELLOWS FALLS v. RICHARD ROBBINS BARBER

Supreme Court of Vermont

May 2, 1939

February Term, 1939.

Action to Recover Assessment on National Bank Stock---1. Someone Liable for Assessment on Every Share under Statute---2. Liability Incident of Ownership---3. Assessment Conclusive---4. Receiver's Duty to Enforce Liability---5. Actual Owner Liable---6. Beneficial Owner Liable---7. Remainderman's Interest Held Vested---8. Assent of Donee to Gift Presumed---9. Presumption of Acceptance Not Conclusive---10. Burden of Evidence on Party Claiming Nonacceptance---11. Exercise of Right to Renounce Legacy---12. Rejection by Minor Legatee after Attaining Majority---13. Effect of Want of Knowledge of Bequest---14. Acceptance by Legatee after Attaining Majority Held Inferable---15. Legatee Having Knowledge of Bequest Bound to Inform Himself---16. Evidence as to Acceptance of Bequest Held to Make Jury Question on Liability for Assessment---17. Legatee Not Entitled to Accept Beneficial and Disclaim Burdensome Property---18. Title to Bank Stock Held in Remainderman and Not in Testator's Estate---19. Satisfaction of Executor's Lien Inferred---20. Rights of Distributees Derived under Will, Not Decree---21. Ownership of Trust Property Not Affected by Trustee's Lien---22. Entry Order on Reversal Where Both Parties Moved for Verdict---23. Effect of Defendant's Motion for Verdict at Close of Plaintiff's Evidence.

1. It is contemplated under U.S. Rev. Stat. 5151, U.S.C. A. tit 12, secs. 63 and 64, that someone shall be legally liable for assessment on every share of stock held in a national bank.

2. Liability imposed on stockholder in national bank under U.S Rev. Stat. 5151, U.S.C. A. tit. 12, secs. 63 and 64, is incident of ownership.

3. Assessment upon national bank stock made by comptroller of the currency is conclusive as to its necessity and amount to be collected.

4. It is duty of receiver of national bank under U.S. Rev. Stat 5234, U.S.C. A. tit. 12, sec. 192, to enforce individual liability of stockholders when assessment is levied on stock.

5. Actual owner of national bank stock may be held for assessment levied thereon, although his name does not appear on transfer books of bank.

6. Where national bank stock is registered in name of holding company or trustee, person having beneficial interest is liable for assessment levied thereon.

7. Where testator bequeathed use and income of bank stock to his widow for life, then to his daughter, and after death of widow and daughter bequeathed the stock to his nephew, such remainderman took interest therein which vested immediately upon death of testator, though enjoyment was postponed until death of second life tenant.

8. Every estate, whether given by will or otherwise, is supposed prima facie to be beneficial to person to whom it is given and, upon ground of implied benefit, he is presumed to assent to it, even though he may be ignorant of the transaction, until the contrary appears.

9. Presumption of acceptance of legacy is not conclusive, for legatee may renounce provision in his favor and leave title as if gift had not been made.

10. While presumption of acceptance of legacy has no probative force, it has effect of casting upon party claiming nonacceptance duty of going forward with evidence in support of his contention.

11. Right to renounce legacy under will must be exercised within reasonable time after opportunity is afforded donee to do so, and renunciation must be shown by some positive, overt act, or course of conduct.

12. Legatee who was minor at time of testator's death had reasonable time after reaching majority in which to reject bequest.

13. While want of knowledge of bequest did not affect presumption of acceptance thereof, it could be considered upon question whether timely rejection had been made.

14. In action to recover assessment on national bank stock, where defendant, to whom remainder interest in stock was bequeathed, testified that while he was still a minor he knew testator had left him something but did not understand very well about it, his failure to act over period of ten years after reaching his majority would justify inference that he accepted whatever bequest might have been made.

15. One who has knowledge of bequest in his favor is bound to take steps to inform himself of its exact nature so that if it appears best to him to reject it, he may do so within reasonable time.

16. In action to recover assessment on national bank stock, where there was no evidence that defendant made any effort to discover terms of will under which remainder interest in bank stock was bequeathed to him following two life estates, though he knew some provision was made for him and attained his majority several years prior to death of second life tenant, and where he kept certificates without dissent when they were sent to him upon settlement of the trust estate, held that evidence as to his acceptance of the bequest was sufficient to make jury question on his liability for assessment, which was levied after death of second life tenant and prior to settlement of estate.

17. Where there was single bequest of stock in two different banks, given as an aggregate, and one of banks became insolvent, requiring assessment on its stock, donee could not accept beneficial property and disclaim burdensome one as no intention to permit such action appeared from will.

18. Where use and income of bank stock was bequeathed to two persons successively for life and stock was bequeathed to third person after death of life tenants, title to stock was not in testator's estate following death of second life tenant, though final decree of distribution therein had not been made, since estate in remainder had become vested in interest at testator's death and it became vested in possession immediately upon death of second life tenant.

19. Where will was probated about fifteen years before trial and trust property had been in possession of trustee and administered by it for about twelve years prior to delivery thereof to remainderman without objection on part of executor, inference could be drawn that any lien executor may have had, had been satisfied.

20. Rights and title of testamentary distributees do not originate in decree of distribution, but are derived from decedent under terms of will, so that executor may vest in them title and possession of their shares without order of distribution and be protected if he pays right parties their proper shares.

21. Though trustee appointed to administer property bequeathed to two persons successively for life, with remainder to a third, had lien on trust property for expenses incurred in execution of its duties, this did not affect question of actual and beneficial ownership thereof after death of second life tenant.

22. Where both parties moved for directed verdict at close of plaintiff's case and defendant's motion was erroneously granted, Supreme Court could not render judgment for plaintiff in absence of affirmative showing from record that each party desired that questions at issue should be submitted to court upon evidence as it then stood, since mere fact that both parties moved for verdict did not amount to consent that case should be taken from jury.

23. Defendant in moving for directed verdict at close of plaintiff's evidence did not waive his right to proceed with his evidence, and then, if there should be issue of fact, have case submitted to jury.

ACTION OF CONTRACT by receiver of national bank to recover assessment levied on its stock. Plea, the general issue. Trial by jury at the September Term, 1938, Windham County, Adams, J., presiding. Both parties moved for a directed verdict at the close of the plaintiff's evidence. Verdict directed for the defendant. The plaintiff moved to set aside the verdict and for a new trial, which was denied. Judgment entered on the verdict. The plaintiff excepted. The opinion states the case.

Judgment reversed and cause remanded.

Samuel H. Crosby and James Brownlee for the plaintiff.

Frank E. Barber and F. Elliott Barber, Jr., for the defendant.

Present: MOULTON, C. J., SHERBURNE, BUTTLES, STURTEVANT and JEFFORDS, JJ.

OPINION

MOULTON

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. ...