Kennedy v. Hodges
| Decision Date | 24 May 1913 |
| Citation | 215 Mass. 112,102 N.E. 432 |
| Parties | KENNEDY et al. v. HODGES et al. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Warren Hoague & Bigelow and Edward
H. Warren, all of Boston, for plaintiffs.
Albert P. Carter, of Newton, and Chas. W. Blood, of Boston, for guardian ad litem of Frederick Hodges.
Clarence A. Bunker, of Boston, for defendant Almon D. Hodges.
This is a suit in equity by ancillary executors for instructions as to their duties. The testator was domiciled in the state of California. His will was admitted to probate in that state. Thereafter it was filed as a foreign will in the probate court for Suffolk county in this commonwealth, and letters ancillary issued to the plaintiffs, who thus are executors by appointment of each state court. Proceedings have been brought against them in the California courts, seeking their removal on the ground that they have failed to account in that state for personal property, for which the plaintiffs feel themselves to be accountable in Massachusetts. Under these circumstances the executors rightly may ask the direction of this court. Stevens v. Warren, 101 Mass. 564.
The testator during his lifetime leased a safe-deposit box in an institution in Boston, for a term unexpired at his death. The bonds, checks and certificates of stock hereafter referred to were in this box, to which the plaintiffs were refused access until they had been appointed executors in this commonwealth. It is enough for the needs of this judgment to say that at the time of his death the testator owned real estate in Minnesota and Rhode Island, and the following classes of personal property:
(a) Miscellaneous chattels.
(b) Coupon bonds of certain foreign corporations.
(c) Registered bonds of certain foreign corporations.
(d) Certificates for shares of stock in a corporation organized under the laws of Massachusetts.
(e) Certificates for shares of stock in the Western Real Estate & Investment Trust.
(f) A deposit in the State Street Trust Company, also one in the Merchants' National Bank, both doing business in Boston.
(g) Certificates for shares of stock in various corporations not organized under the laws of Massachusetts.
(h) Two uncashed checks payable to the order of the testator, drawn on banks in Boston.
(i) Claims for rent under leases of the real estate in Minnesota and Rhode Island, paid voluntarily to the plaintiffs in the county of Suffolk.
(j) A claim for money lent which was paid by the debtor to the plaintiffs in the county of Suffolk.
The question is, for which of these items of property are the ancillary executors accountable in the probate court of Massachusetts. R. L. c. 143, § 1, provides that when administration is taken in this commonwealth on the estate of a nonresident, 'his estate found here shall' be administered as provided later in the chapter. The decision must turn on the determination of how many of the items referred to are 'estate' of the testator 'found here.' No serious question is or could be made that this language includes the property described under classes (a), (b), (f) and (h). Pinney v. McGregory, 102 Mass. 186.
It also is plain that the registered bonds, being class (c), were property found within the commonwealth. Bonds, being specialties, have a situs where found. Callahan v. Woodbridge, 171 Mass. 595, 51 N.E. 176; Selliger v. Kentucky, 213 U.S. 200, 204, 29 S.Ct. 449, 53 L.Ed. 761; In re Morgan, 150 N.Y. 35, 44 N.E. 1126.
Class (d) being certificates for shares of stock in a domestic corporation, the domicile of the corporation being within the commonwealth, were found here by the ancillary executors and should be accounted for in our courts. Greves v. Shaw, 173 Mass. 205, 53 N.E. 372.
Class (e), the shares in the Western Real Estate Trust, come within the same rule. The trustees are resident in this commonwealth and their home business office is here, where only can the certificates be transferred upon surrender and new certificates issued. The certificate holder is at least the owner of an undivided equitable interest in the property held by the trustees. There is on principle in this respect no distinction between such certificate and a certificate for shares of stock in a domestic corporation. This is virtually decided by Kinney v. Treasurer and Receiver Gen., 207 Mass. 368, 371, 93 N.E. 586, 35 L. R. A. (N. S.) 784, Ann. Cas. 1912A, 902; Peabody v. Stevens, 102 N.E. 435.
Class (g), being certificates for shares of stock in corporations not organized under the laws of this commonwealth, presents the most difficult question. A certificate for shares of stock in a corporation, although evidence of title, does not constitute the title. It is not the stock. Field v. Pierce, 102 Mass. 256, 261. Failure on the part of a corporation to issue the certificate does not impair the rights of a stockholder who is notwithstanding entitled to be treated as such. Old Dominion Copper Mining & Smelting Co. v. Bigelow, 203 Mass. 159, 198, 89 N.E. 193, 40 L. R. A. (N. S.) 314, and cases cited. A certificate of stock is not necessary to the existence of the property. 'It certifies to a fact which exists independently of itself.' Pacific Nat. Bank v. Eaton, 141 U.S. 227, 234, 11 S.Ct. 984, 985 (35 L.Ed. 702). The paper upon which the certificate is printed is not the thing of value, but the ownership in the fractional part of the assets of the corporation. This analysis of the nature of a certificate of stock makes it difficult to conceive of the certificate itself as capable of having an independent situs. No doubt modern commercial usage treats certificates of stock as possessing some of the attributes of property. They are generally bought and sold and pass by delivery when...
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