Ewing v. Warren

109 So. 601, 144 Miss. 233, 1926 Miss. LEXIS 342

• Court: Mississippi Supreme Court
• Decided: May 24, 1926
• Docket: No. 25598.
• Status: Published

Opinion

Holden, P. J.,

delivered the opinion of the court.

The case involves the question of the situs and distribution of certain personal property of Mrs. Ola H. Warren who died intestate September 20, 1923, in the state of Minnesota, where she was domiciled. The personal property consisted of shares of stock in different corporations located and doing business in Mississippi, and elsewhere. The deceased left surviving* her four children, the appellants, and her husband, the appellee.

One of the main questions in the case is whether or not the personal property, represented by shares of stock in corporations located and operating; in the state of Mississippi, shall descend and be distributed under the laws of Mississippi, or under the laws of Minnesota. If the distribution should be made under the laws of Minnesota the husband of the deceased would take one-third of her estate, and her four children, parties to this suit, would take the other two-thirds, to be divided between them one-sixth to each; but, if the personal property descends under the laws of Mississippi, the husband will take one-fifth of it and the four children will take the other four-fifths.

On the trial below the chancellor held that the shares of stock in the corporations located and doing business in Mississippi would descend under the laws of Missis sippi; that the husband of the deceased, who was adjudged a bankrupt after the death of his wife, and is represented in this case by P. A. Miller, the trustee in bankruptcy in Minnesota, would take only one-fifth of the property represented by shares of stock in Mississippi corporations, and that the four children would take the other four-fifths of the property; and from this decree the trustee in bankruptcy and the City National Bank of Duluth, Minn., present administrator of the estate of the deceased Mrs. Warren, appeal to this court. The administrator in Mississippi, E. I. Ducate, for the children, also appeals.

Mrs. Ola D'. Warren was domiciled in Minnesota and there possessed the shares of stock involved in this suit at the time of her death. She had married twice; first to Wm. L. Ewing’, to which marriage was born the two children, Wm. L. Ewing and Nathaniel D. Ewing, minors, and parties to this suit. After being divorced from Ewing she married the appellee ITarry 0|. Warren, and to this marriage the two children, Harry O'. Warren, Jr., and Roseann Warren* minors, who are also. parties to this action, were born. So at the time "of her death Mrs. Warren left as her heirs the four children just named, and her husband, Harry O. Warren.

The four children contend, through the Mississippi administrator, E. L. Ducate, that they are entitled to four-fifths of the personal property under the law of descent and distribution in Mississippi, and that the husband, Harry O'. Warren, as now represented by the trustee in bankruptcy, Miller, is entitled, if to any interest, to the other one-fifth of the property because the situs of this personal property is in "Mississippi, and is governed by the descent and distribution statute of this state.

The trustee in bankruptcy and the Minnesota administrator, the City National Bank of Duluth, contend that the personal property involved should descend and be distributed under the laws of Minnesota, because the deceased was there domiciled and had possession of the shares of corporate stock at the time of her death, and that, therefore, the situs of the property was in Minnesota and not in Mississippi.

We think the holding of the chancellor' that the situs was in this state was correct, and the distribution is controlled by the statute of descent and distribution of Mississippi. We may say at this juncture that all parties concede that shares of stock in a corporation are personal property under the laws of Mississippi. The statute referred to is in the following language: .

Section 1648 Code of 1906 (section 1380, Hemingway’s Code) :

“All personal property situated in this state shall descend and be distributed according to the laws of this state regulating the descent and distribution of such property, regardless of all marital rights which may have accrued in other states, and notwithstanding the domicile of the deceased may have been in another state, and whether the heirs or persons entitled to distribution be in this state or not; and the widow of such deceased person shall take her share in the personal estate according to the laws of this state.”

We think the question presented was clearly decided in the case of Jane v. Martinez, 104 Miss. 208, 61 So. 177, wherein this court held that stock in a bank is personal property and has its sitios where the bank is chartered and located, and that such property was distributable according to the laws of this state. This decision is in point and is controlling, and renders it unnecessary to further discuss the question; consequently we hold that the chancellor was correct in his decree on this proposition.

But it is contended by the Minnesota parties that some of the certificates of shares of corporate stock involved in this case represent stock in a Louisiana corporation, and that, therefore, their situs' would not be in Mississippi, and such stock should go to the Minnesota representatives. But we think the position is not maintain able, because, while the corporation in question Was chartered under the laws of Louisiana, it is located and doing business principally, if not wholly, within the state of Mississippi, and became domesticated under our laws, as provided by sections 915, 916 and 917, Code of 1906 (sections 4089, 4090 and 4091, Hemingway’s Code). The latter section provides that — “Any corporation shall, upon compliance with this law, become to all intents and purposes a corporation of this state, and shall be entitled to all the rights and privileges and be subject to all the duties, obligations, restrictions, liabilities, limits and penalties conferred and imposed by laws of this state upon similar corporations incorporated under the laws of this state.”

And therefore the situs of such shares for devolution purposes is in Mississippi. See Wait v. Kern River Mining, etc., Co., 157 Cal. 16, 106 P. 98. We do not think Rhode Island Co. v. Doughton, 46 S. Ct. 256, 70 L. Ed. —, is contrary to the above view.

The finding' of the chancellor that the money deposited in one of the banks of this state, belonging to the estate of the deceased, was also to be distributed under our law, because of its situs, was also correct.

The decree of the chancellor that the other property in controversy, located elsewhere than in Mississippi, should be turned over by E. L. Ducate, Mississippi administrator to the City National Bank of Duluth, Minn., administrator in Minnesota, to be distributed there in accordance with the laws of that state was correct, and will not be disturbed here.

The lower court held that the one-fifth interest descended to the husband of the deceased under the laws of this state was to go to Miller, the trustee in bankruptcy in Minnesota, and that, if there should be any balance remaining after the debts of the bankrupt were paid by the trustee, it should be turned over to the four children of the deceased.

The appellant, Administrator Dncate, for the four children, contends that the court erred in allowing the one-fifth interest to go to the trustee, because Warren, the husband of the deceased, had dissipated and spent a large amount of the estate before it was recovered from him by the administrators in the present proceeding, and that, since he had spent more than his one-fifth .share of the personal property in Mississippi he should not be allowed to take any part of the property remaining, and therefore the trustee, who must take through Warren, should receive nothing. Warren had obtained possession of the property before he was removed as administrator.

We disagree with this view, because at the. time of the death of Mrs. Warren, her husband took, by inheritance, an interest in her estate, and while he still owned the interest in the estate, and before the dissipation, he was adjudged a bankrupt, whereupon the interest of Warren, immediately vested in the trustee in bankruptcy, and Warren, therefore, had no interest afterwards to dissipate, because under the law the title thereto had passed to the trustee when Warren was adjudged a bankrupt.

The conversion of the property by Warren after he was adjudged a bankrupt could not be charged against the interest of the trustee, for the reason that the dissipation of the estate by Warren was tantamount to the theft of it by an outsider, and the loss would be shared by all of the parties in interest, and the interest of the trustee would not be affected except to be proportionately reduced accordingly to the shrinkage of the estate on account of the wrongful appropriation by Warren. Therefore the chancellor was correct in his decision on this point.

The lower court was also right in holding that any balance remaining after the trustee had paid the debts of the bankrupt should be paid to the four children of deceased. This ruling was proper upon the ground that whatever balance the trustee might have belonging to Warren should go to satisfy the personal money decree of twenty-six thousand three hundred eighty-six dollars rendered by the lower court against him for money and property of the estate wrongfully appropriated by him to his own use.

The lower court also found that the two minor Ewing children should recover' the sum of five thousand dollars as a prior claim against the estate of Mrs. Warren as the value of certain diamonds which Mr. Ewing;, the father of the two children, and his wife, the then Mrs. Ewing, had agreed, in writing, that Mrs. Ewing, upon the separation between her and her husband would retain until the two children became of age and then deliver them, or that if Mrs. Ewing remarried before a certain time she would turn the diamonds over to the children.

Mrs. Ewing married before the expiration of the time named in the contract, but she did not then turn the diamonds over to the children, but kept them until her death, when they were taken by Warren and wrongfully appropriated to his own use. So, when Mrs. Warren died she had the diamonds, which she should have delivered to the children, under the contract with her husband, when she remarried; and having breached the contract with her ex-husband to deliver the diamonds (which contract we here hold to be valid), she then held them in conversion at the time of her death and her estate is therefore liable for their value to the two children. The holding of the lower court on this point was correct.

The record discloses that the husband, Iiarry 0. Warren, obtained possession of large sums of money and diamonds belonging to the estate of Mrs. Warren, which he wrongfully appropriated to his -own use. The chancellor rendered a. personal decree against the said Harry O'. Warren on this account, for the sum of twenty-six •thpusanjd three hundred eighty-three dollars, and we see no error on the part of the chancellor in this regard.

Ill view of the conclusions reached above, the decree of the lower court is affirmed in all respects, and as to all parties.

Affirmed.

On Suggestion oe Error.

The suggestion of error filed herein by appellants, Paul A. Miller, trustee in bankruptcy, and the City National Bank, of Duluth, Minn., has been considered by all of the judges of this division, and we have decided to overrule it for the following reason:

None of the points presented by the suggestion of error is meritorious, except, possibly, the contention with reference to the record failing to show that the Dxmbar-Ducate Company was domesticated in this state, but was a Louisiana corporation, and the stock therein was held by a resident of Minnesota at the time of her death, and that therefore the stock in this corporation should be distributed, according to the laws of Mississippi, but under the laws either of Louisiana or Minnesota, and that, consequently, our opinion in that regard is erroneous, because this corporation had not in fact been domesticated in Mississippi. This case is reported at page 601, 109 So.

In the original presentation to us of this question as to what state law should govern in the distribution of the stock, counsel for appellants, both orally and by briefs, argued the question upon the theory that the finding of fact by the chancellor that this corporation had become domesticated in this state was correct, but that the stock in the corporation should be distributed under the laws of the state of the domicile of the deceased owner, or under the laws of the state of Louisiana, where the corporation was originally chartered. We considered the question upon that state of case, and rendered our decision adverse to appellants’ view, and now, after-counsel has litigated the legal question upon that theory, and secured from us a decision of the point, we are met with the suggestion that there is no basis of fact in the record as to the corporation being domesticated in this state, upon which to predicate our adjudication of the legal question.

The point now made by counsel should have been presented originally, and, reluctant as we are to refuse to consider a material point, though raised for the first time on suggestion of error, we have decided, in the present instance, it being in our discretion, to decline to consider the point now urged for reversal of the lower court. If we should now entertain the point raised by the suggestion, our decision might possibly result in overruling the suggestion upon the ground that there was a substantial compliance with the law in respect to domestication of the corporation in question, or that the filing of the charter in this state and the fact that the property of the corporation was wholly located in this state, for all practical purposes, would bring' the distribution of the stock under the laws of the state of Mississippi.

However, we will not now consider the question as to whether the corporation was domesticated in this state by technical compliance with the requirements of the statutes in that regard, but shall overrule the suggestion of error for the reason mentioned.

Overruled.