Myers v. Martinez

• Decision Date: 15 February 1909
• Docket Number: 13,756
• Citation: 48 So. 291,95 Miss. 104
• Court: Mississippi Supreme Court
• Parties: ELIZABETH D. MYERS ET AL. v. MARY J. MARTINEZ ET AL

48 So. 291

95 Miss. 104

ELIZABETH D. MYERS ET AL. v. MARY J. MARTINEZ ET AL

No. 13,756

Supreme Court of Mississippi

February 15, 1909

FROM the chancery court of Jackson county, HON. THADDEUS A. WOOD Chancellor.

Mrs Martinez and others, appellees, were complainants in the court below; Mrs. Myers and others, appellants, were defendants there. From a decree overruling defendants' demurrers to the bill of complaint they appelled to the supreme court.

The bill of complaint charged that Mrs. Myers, a citizen of Alabama, had been appointed by the proper court of that state the executrix of her deceased husband's will, the husband being a resident of that state at the time of his death; that she was granted by the chancery court of Jackson county Mississippi, ancilliary letters testamentary of said will and that the defendant Jane, a surety on the bond of Mrs. Myers given in this state on the grant to her of the ancillary letters testamentary, was an officer of the Merchants &amp Marine Bank, and that the bank, having knowledge that the administration was a pending one, permitted the administratrix to sell the shares or its capital stock belonging to the deceased at the time of his death.

The other facts are stated in, or can be clearly inferred from, the opinion of the court.

that the property is of an intangible nature renders it incapable of having any actual location of its own, and the law locates it upon the person of the owner. The very neat and accurate definition of Mr. Williams wherein he calls such property "incorporeal personal property" is determinative of this point.

Affirmed in part, reversed in part.

Fitts & Leigh, for appellant, Elizabeth D. Johnson.

The certificates of stock being intangible property, followed the person of the owner, and were presumed in law to be about his person in the state of Alabama when he expired. The fact Williams on Personal Property, 191; 1 Cook on Corporations, § 12; State v. Kidd, 125 Ala. 421, affirmed on appeal, 188 U.S. 730; Pleasanton v. Johnson, 91 Md. 673, 47 A. 1025; Boyd v. City of Selma, 96 Ala. 144, 16 L. R. A. 729; Desty on Taxation, vol. 1, p. 329; Soward v. Rising Sun City, 79 Ind. 351; Murray v. Charleston, 96 U.S. 432.

The situs of the stock for the purpose of administration was in the state of Alabama. Rockwell v. Bradshaw, 34 A. 758.

"The executors in the state of the decedent may transfer the stock of the estate, and convey a title which the purchaser of the certificate may require the corporation to recognize, although the corporation itself is domiciled in another state." 1 Cook on Corporations, § 329; Middlebrook v. Merchants Bank, 3 Keyes (N. Y.) 135; Luce v. Manchester, etc., R. Co., 63 N.H. 588; Hobbs v. Western National Bank, 12 Fed. Cas. 265; In re Cape May, etc., Co., 16 A. 191.

"A domiciliary representative may assign shares of stock in a foreign corporation belonging to the estate, and no local grant of administration is necessary to compel a transfer on the books of the corporation." 18 Cyc. 1231, and cases cited in notes.

It will be accepted as a generally accurate proposition that the administration granted at the domicile of the testator is the principal administration, and that any administration appointed through the courts of, or under the laws of any foreign country or state is ancillary in its nature; the object of such ancillary representation being to gather the assets of the estate happening to be found in the foreign state or country, convert them into money, paying therefrom all debts due to, or enforceable in favor of the citizen of the foreign state or country, and after this purpose has been accomplished, remitting the residue resulting from such ancillary proceeding to the corpus of the estate as in process of administration by the principal or main personal representative holding letters testamentary in the state or country in which the testator was domiciled at the time of his death. Or, to state the same proposition somewhat differently, the title of a domiciliary representative differs from that of an ancillary representative in that the title of the domicilary representative extends to all of the descendant's personal property, wherever situated; but in order to make this title effective compliance with the laws of a foreign state in which a moiety of the descendant's personal estate is found oftentimes requires an ancillary representative in such foreign jurisdiction; and the title of such ancillary representative is limited strictly to the collection and reduction of the assets within the jurisdiction of his appointment. In other words the title of a domiciliary representative is commensurate with the title which the owner had while living. Quite to the contrary, the title of the ancillary representative is limited to the purpose for which the secondary proceeding is sued out; and while in this case the appointment of a representative in Mississippi was necessary in order to make sale of the small amount of personal estate belonging to Johnson found in that jurisdiction, the object and purpose of the administration in Mississippi was merely to gain possession of, and reduce, the property found there, and not to conflict with the distribution of property left by the decedent in the state of Alabama and legally subject to distribution in that state.

In the case at bar there was no intestacy as to any part of the estate of Johnson. He left all of his property, wherever situated, to his wife, Elizabeth D. Johnson, and the property sued about, as has been shown, supra, being intangible personal property, was situated with him when he died, and non constat has been set aside to the wife, not only by virtue of the terms of the will, but by the statute of Alabama allowing the widow an exemption of personal property with a perfect title thereto. We call particular attention to the fact that the testator, Johnson, did not die intestate with respect to any of his property, for the reason that in 1873 when the supreme court of Mississippi was called upon to make comment upon the statute referred to, and to the distinction pointed out and relied upon by us, the court through SIMRALL, J., in the case of Wilson v. Cox et al., 49 Miss. 543, made use of the following words: "It repealed the old law which distributes an intestate's estate, domiciled abroad according to the law of that state and enacted that, notwithstanding the domicile of the decedent may have been...