Joseph v. National Bank of West Virginia

• Decision Date: 16 June 1942
• Docket Number: C. C. No. 651.
• Citation: 21 S.E.2d 141,124 W.Va. 500
• Parties: JOSEPH v. NATIONAL BANK OF WEST VIRGINIA.
• Court: West Virginia Supreme Court

21 S.E.2d 141

124 W.Va. 500

JOSEPH v. NATIONAL BANK OF WEST VIRGINIA.

C. C. No. 651.

Supreme Court of Appeals of West Virginia.

June 16, 1942

Rehearing Denied Aug. 1, 1942.

Syllabus by the Court be transferred. Code 1931, 44-11-6.

Wesley R. Tinker, Jr., of Wheeling, for plaintiff in error.

Jay T. McCamic, of Wheeling, for defendant in error.

LOVINS Judge.

This action, a notice of motion for judgment, was instituted in the Circuit Court of Ohio County by Albert C. Joseph, who had qualified in the State of Ohio as executor of the last will and testament of Esther Toth, a resident of the State of Ohio at the time of her death. The defendant demurred to the notice, which demurrer the court sustained, and of its own motion and on joint application of the parties, the ruling was certified to this court.

The plaintiff avers that the defendant bank is indebted to him in the sum of $3,537.64, including interest, by reason of a certain savings account therein owned by his decedent. It does not appear how the account is evidenced, whether by savings pass book or otherwise. The foregoing savings account is all the property belonging to the estate of the decedent located in the State of West Virginia, except a smaller amount on deposit in another bank, which has been paid to the plaintiff executor. The plaintiff made demand on the defendant bank that the savings account be transferred to him, filed written consent of the state tax commissioner for such transfer, as well as his affidavit to the effect that there are no creditors of the estate in this State, and offered to comply with the provisions of Code, 44-11-1 and 2. The plaintiff further alleged that a savings account within the meaning of the statutes just mentioned is a "security", and asked for judgment in the amount of the account and also that the court consider the notice of motion as an application for a declaratory judgment under the "Uniform Declaratory Judgments Act", Chapter 26 Acts 1941.

The demurrer to the notice assigned ten grounds, which may be summarized as follows: (a) That the plaintiff, being an executor qualified in another state, can not maintain this action; (b) that ancillary administration is required in this State; and (c) that the savings account is not a security within the meaning of Code, 44-11-1 and 2. Defendant also filed its answer, by which it requested a declaratory judgment as to its rights.

On the issues thus raised the trial court ruled that the plaintiff could not maintain his action, under the holding of this court in Curl v. Ingram, 121 W.Va. 763, 6 S.E.2d 483, but that it had jurisdiction to construe the statutes invoked by the plaintiff (Code, 44-11-1 and 2) upon the request for declaratory judgment, made by both parties, and upon such construction further held that a savings account in a national bank is not a "security" within the meaning of Code, 44-11-1.

The ruling of the trial court that the plaintiff can not maintain its action is right, and requires little discussion. The letters testamentary granted to the plaintiff by a probate court in the State of Ohio have no extraterritorial effect. Curl v. Ingram, supra. In the case of Winning v. Silver Hill Oil Co., 89 W.Va. 70, 108 S.E. 593, it is pointed out that a suit may be maintained by a foreign executor by reason of the provisions of Code, 44-11-6. The defendant in relation to the savings account is not acting in the capacity of a trustee, administrator or executor, and therefore plaintiff's...