Rutledge v. Stackley

• Decision Date: 28 September 1931
• Docket Number: 13247.
• Parties: RUTLEDGE v. STACKLEY et al.
• Court: South Carolina Supreme Court

160 S.E. 429

162 S.C. 170

RUTLEDGE v. STACKLEY et al.

No. 13247.

Supreme Court of South Carolina

September 28, 1931

Appeal from Common Pleas Circuit Court of Florence County; E. C Dennis, Judge.

Action by Margaret E. Rutledge against Herbert Stackley and others, trustees. Decree for plaintiff, and defendants appeal.

Reversed.

Preston B. Thames, of Florence, for appellants.

R. W Sharkey, of Florence, for respondent.

STABLER J.

Upon the closing of the Bank of Florence about October, 1928, this action was brought against the stockholders to enforce the statutory liability, appellants being among the defendants.

There is no dispute as to the facts. About August, 1927, J. F Stackley and his wife transferred some shares of stock which they owned in the bank to their four children, the appellants, the transfers being regularly entered on the books of the bank in the names: Herbert Stackley, trustee Mrs. J. C. Jeffcoat, trustee; Helen S. Griste, trustee; and John J. Stackley, trustee; neither the names of cestuis que trustent nor the conditions of the trusts being shown. It was established by parol testimony that the trustees were to hold the stock ""for the sole benefit and behoof of their respective children, to manage and control the same for their benefit and to collect dividends and apply the same to their maintenance, education and support." The beneficiary children are minors, and all the appellants except Mrs. Jeffcoat hold property other than the bank stock as trustees for their respective children.

The master found, as matter of fact, that the trust was made in good faith, without any disposition to escape the statutory liability, and that the trustees never had any personal interest or ownership in the stock; and concluded, as matter of law, that they were not liable for the statutory assessment, recommending that, as to them, the complaint be dismissed.

The circuit judge concurred in the master's conclusion that the defendants were not personally liable--from which holding there is no appeal--but held that "there was a valid, legal trust in connection with each of the defendants named above, and that the estates of the respective cestuis que trustent are liable for the payment of the liability sought to be imposed," and directed that plaintiffs have judgment against the defendants as trustees in the amounts of their respective holdings, with "leave to levy execution upon so much of the property of the above named cestuis que trustent, in the possession of the said Trustees, as may be necessary to satisfy the said judgments." From this decree defendants appeal, the exceptions presenting two questions:

1. The cestuis que trustent being minors, can their respective estates, in the hands of trustees named, be held responsible for the statutory liability on bank stock?

2. Can judgments be rendered against the property of the minor beneficiaries, such beneficiaries not being represented in the action by guardians ad litem?

As to the first question:

Respondent contends that the liability of bank stockholders does not arise ex contractu, but it is statutory, that the statute makes no exception as to infants, and that therefore they are subject to the liability along with other stockholders.

While the liability is imposed under a statute (section 3998, vol. 3, 1922 Code), this court has recently held that it "is contractual in its nature, arising by reason of the purchase of the stock, the subscription being a voluntary act of the purchaser, who makes it in contemplation of all applicable law and understanding that he may be called upon for such contribution." Fischer v. Chisholm, 159 S.C. 395, 157 S.E. 139, 140.

This view of the matter practically disposes of the point at issue. It can hardly be disputed that the minor beneficiaries had no legal capacity to assume the obligation, and certainly the trustees had no express or implied power to assume it for them; consequently, their estates in the hands of the trustees cannot be held liable.

The case is very similar to Early v. Richardson, 280 U.S. 496, 50 S.Ct. 176, 177, 74 L.Ed. 575, 69 A. L. R. 658. In that case Richardson purchased some stock in a national bank, received the certificates therefor indorsed in blank by the seller, and delivered them to the bank, with instructions to register the stock and issue new certificates in the name of his minor children, which was done. It was held that Richardson was liable for the stockholder's assessment, the court saying: "The real question is whether the intent of Richardson to buy the stock for his minor children, and the fact that by his direction the transfer was made to them upon the books of the bank and certificates issued in their names, had the effect of relieving Richardson from liability. We think not, since the transferees, being minors, were without legal capacity to assume the obligation. Upon coming of age they would have an election either to affirm or avoid the entire transaction. In the meantime, the transfer of the stock having resulted to their disadvantage, the law will avoid it for them, thus leaving the liability of Richardson for assessments unaffected." (Italics added.)

The court quoted with approval from Foster v. Chase (C. C.) 75 F. 797, as follows: "The plaintiff claims that the defendant made himself liable for the assessment because of the incapacity of his children to take the stock and make themselves liable for it. He insists that they only are the shareholders, and liable, if any one is. Assent is necessary to becoming a shareholder, subject to this liability, in a national bank. Keyser v. Hitz, 133 U.S. 138, 33 L.Ed. 531, 10 S.Ct. 290. Minors do not seem to have anywhere the necessary legal capacity for that. The principles upon which this disability rests are elementary and universal. 1 Bl. Comm. 492; 2 Kent Comm. 233. In buying and paying for this stock, and having it placed on the books of the bank, the defendant acted for himself; in having it placed there in the names of his children, as with their assent, he assumed to act for them. As they could not themselves so assent as to be bound to the liabilities of a shareholder, they could not so authorize him to assent for them as to bind them. To the extent that they could not be bound he acted without legal authority, and bound only himself." (Italics added.)

The reasoning in that case is the more applicable to the one at bar, because in this state, as in the federal jurisdiction, assent or voluntary assumption of the liability by a shareholder is necessary in order to bind him to such obligation.

Our disposition...