Spalding Co. v. Roberts

SHAW, J.

From the judgment and from the order denying a new trial the defendant appeals.

The object of the action is to procure a judgment directing the state treasurer to return to the plaintiff certain bonds amounting to $100,105, face value, theretofore deposited with him by the plaintiff to comply with the provisions of the act of April 6,1891.

The plaintiff corporation was organized on March 9, 1908. Its articles of incorporation empowered it to “buy, sell, manage, control and dispose of” almost every kind of property and, specifically, among other things, “4. To act as trustee, guardian, executor, administrator, assignee, receiver, and in any fiduciary capacity”; and “5. To do a general commercial bank and trust business, and to accept and execute trusts

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of all kinds.” Its capital stock is two hundred and fifty thousand dollars, divided into two thousand five hundred shares, all of which except two were subscribed by Z. S. Spalding and Rufus P. Spalding, and which, so far as appears, are still held by them.

The act of 1891 (Stats. 1891, p. 490) provided that any corporation which was authorized by its articles to act as executor, administrator, guardian of estates, assignee, receiver, depositary, or trustee, and having a paid-up capital stock of two hundred and fifty thousand dollars, may be appointed to act in any of said specified capacities, in like manner as individuals (sec. 1). It also provided that the courts could by order require that trust moneys, held by any officer or trustee under its jurisdiction, be deposited with such corporation (secs. 2, 3, 4), and that such corporations should not be required to give any special bond to secure the performance of such trusts (sec. 5), but that, “each corporation, before accepting any such appointment or trust, shall deposit with the treasurer of state, for the benefit of the creditors of said corporation,” one hundred thousand dollars in bonds of specified descriptions, or real estate mortgages, such bonds and mortgages “to be subject to sale and transfer, and to the disposal of the proceeds by said treasurer, only on the order of a court of competent jurisdiction, and as hereinafter provided.” (Sec. 7, as amended in 1897, Stats. 1897, p. 424.) The phrase “and as hereinafter provided” seems to have no application, for the statute does not provide a special proceeding in court to determine as to the sale, transfer, or disposal of the bonds or proceeds thereof.