Vantine v. Morse , 104 Mass. 275 ( 1870 )

Ames, J.

It is well established that a legacy in the hands of an executor may be attached on a trustee process in favor of a creditor of the legatee, without the necessity of waiting for the expiration of one year from the appointment of the executor. Gen. Sts. c. 142, § 22. For the protection of the executor, the court, whenever it should be necessary, would' order the continuance of the case, until the estate was so far settled as to render it certain that the legacy would be paid from the assets. Hoar v. Marshall, 2 Gray, 251. We know no reason why the same rule should not apply where the legacy, as in the present case, takes the form of a gift of shares in a corporation, having a pecuniary value. It has been settled that shares in a corporation may be attached on a trustee process. New England Insurance Co. v. Chandler, 16 Mass. 275.

The case finds that the shares in question were not required for the payment of the debts of the estate. They stood upon the books of the bank in the name of the testatrix, and the certificate in her name, which is the evidence of her title, is in the nands of the executors. No transfer can be made except by them, but the beneficial interest in the shares belongs to the legatee, and he was entitled, certainly after the expiration of the /ear from the date of their appointment, to demand such a transfer to himself. But this transfer was a mere duty, in relation to which nothing was left to their discretion. It was reduced to a mere ministerial act, which they were bound to perform on demand. In other words, they owed him these shares, and they hold them for him. We think that his interest in them could have been attached in an ordinary trustee process, and that upon such a process the executors could be charged as his trustees. When so charged, it would be their duty, on being called upon by the officer to whom the execution should be committed for service, to give up the shares so that they could be taken on the execution. The mode of doing so would of course not be the same as in the case of chattels susceptible of manual or literal delivery, or of money to be paid over. It would be their duty, however, to divest themselves of the formal title, and to make such a transfer as the by-laws of the corporation might require, in order to place the shares, on their books, in the name of the legatee, in which event the officer would proceed to levy the execution upon them in the manner prescribed by statute. Gen. Sts. c. 123, § 59.

The plaintiff’s bill, having been founded upon the erroneous assumption that the property of the debtor, under these circumstances, cannot be come at to be attached or taken on execution, must therefore be Dismissed, with costs.