McGill v. Bankers' Trust Co. , 52 Nev. 35 ( 1929 )

Under the common law a corporation was not competent to act as an administrator or executor because it could not take an oath for the due execution of the office. Fletcher Cyc. Corps., vol. 2, sec. 937; idem, vol. 2, p. 1883, n. 41.

And that the rule prevails at the present time, see Farmers Loan and Trust Co. v. Smith, 74 Conn. 625, 51 A. 609; Georgetown College v. Browne, 34 Md. 450; Continental Tr. Co. v. Peterson, 76 Nebr. 411, 110 N.W. 316, 107 N.W. 786.

At the time of said appointment, sec. 5910, Rev. Laws of Nevada, as amended in 1919, did not provide that such oath could be taken and subscribed by an officer of the corporation, as it does as amended in 1927.

Sec. 5474, Rev. Laws, provides: "The common law of England, so far as it is not repugnant to, or in conflict with the constitution and laws of this state, shall be the rule of decision in all courts of this state."

It is said in Clark v. Clark, 17 Nev. 128: "The common law of England, as modified by English statutes, adopted prior to the time of the declaration of American independence, is presumed to be the law of this state, so far as it is applicable to our condition." See, also, 5 Cal. Jur. p. 254.

A corporation is not a person within the purview of the probate law, where only persons are mentioned as being competent to be appointed executors or administrators. State v. Duncan, Probate Judge (Mo.), 257 S.W. 784; Grunow v. Simonitsch et al. (N.D.), 130 N.W. 835; Appeal of Woodbury et al., 96 A. 300; Equitable Trust Co. etc. v. Plume, 103 A. 940; Matter of Avery, 45 Misc. Rep. (N.Y.), 529, 92 N.Y.S. 974; Fellows v. First National Bank, 159 N.W. 335.

Appointment of foreign corporation as executor or administrator is against public policy of the state. Matter of Avery, supra.

The right of a trust company under its charter and the laws of its creation to exercise its chartered powers and privileges beyond the boundaries of the state of its creation cannot confer the right upon it to exercise such powers and privileges in another state if contrary to its laws, or against its public policy. Matter of Avery, supra.

Where the state has a general law for the organization of domestic corporations with provisions therein specifying the terms and conditions to be complied with by foreign corporations before they may lawfully do business within the state, and special laws and acts for the formation and organization of domestic banks and trust companies and according such special privileges, foreign corporations coming into the state to do business under such general laws are not permitted to exercise such special privileges. In Re Estate of Prime, 136 N.Y. 347, 18 L.R.A. 713; White v. Howard, 46 N.Y. 144; Fletcher Cyc. Corps. vol. 8, sec. 5886; Matter of Avery, supra; Matter of Ballis, 144 N.Y. 132.

A foreign trust company may not come into this state and carry on a trust company business under our general corporation laws relative to foreign corporations. New York etc. v. Secretary of State, 150 Mich. 197, 114 N.W. 82; Union Savings Assn. v. Burns,176 P. 227; Fletcher Cyc. Corps., sec. 5734, vol. 8; Matter of Avery, supra.

Therefore the order appointing such administrator of estate is void, as well as the letters of administration issued thereunder. Continental Trust Co. v. Peterson, 107 N.W. 788; notes to Giglio v. Woollard, 14 A.L.R. 616; Haug v. Primeau, 98 Mich. 91,57 N.W. 25; Moore v. Philbrick, 32 Me. 103; 15 C.J. 729, "Excess of Jurisdiction"; 15 C.J. 852; 15 Cal. Jur. 49. Assuming, for the sake of argument, that the Bankers' Trust Company was not eligible to be appointed or to act as administrator, the order appointing it was not void, but at the most was only erroneous and voidable. Lincoln Trust Company v. Gaddis and Perry, 15 Ariz. 372, 139 P. 461; Union Savings Bank and Trust Co. v. Western Union etc. Co., 79 Ohio St. 89,86 N.E. 578, 128 Am. St. Rep. 675; note to Giglio v. Woollard, 14 A.L.R. 616.

The order and letters not being void and not having been appealed from may only be revoked for one of the causes specified in the statute, which does not include the cause presented by the motion involved on this appeal. "The principle is well established in the construction of statutes that where certain things are enumerated as disqualifications, then all other things are excluded; this principle being expressed in the maxim `expressio unius est exclusio alterius.'" In Re Bailey's Estate,31 Nev. 383, 103 P. 232. See, also, Munroe v. People, 102 Ill. 406; Clark v. Patterson (1905), 214 Ill. 533, 73 N.E. 806, 105 Am. St. Rep. 127; In Re McDonald's Estate (1914), 211 N.Y. 272,105 N.E. 407; In Re Rhoda (Matter of Giotto), 105 A.D. 143,93 N.Y.S. 973; In Re Shenk's Estate, 125 Misc. 386, 211 N.Y.S. 514; Miller v. Hider, 9 Colo. App. 50, 47 P. 406; Sweeney v. Sweeney,42 Nev. 431, 179 P. 638.

Movants were estopped by their conduct to urge the motion and had lost the right to do so by their laches. Estate of Kirtlan,16 Cal. 162; Estate of Keans, 56 Cal. 407; Silvar's Estate (Cal),46 P. 296; In Re Infelise's Estate, 51 Mont. 18, 149 P. 365; Miller v. Hider, supra.

A foreign corporation may receive letters of administration and act as administrator under the laws of Nevada, and hence the appointment of the Bankers' Trust Company was not even erroneous or voidable.

On the ability of a corporation to take the administrator's oath, see Woerner on Administration (1923 ed.), p. 788; 23 C.J. 1026; Fidelity etc. Co. v. Niven (Deringer v. Deringer), 5 Houst. (Dela.) 416, 1 Am. St. Rep. 150 (reversing the decision of the superior court in 5 Houst. 163); Minnesota Loan Trust Co. v. Beebe (Minn. 1889), 41 N.W. 234, 2 L.R.A. 418; Simmons v. Campbell (Tex.Civ.App.), 213 S.W. 338; Union Bank and Trust Co. v. Wright (Tenn.), 58 S.W. 755; Kelly v. Calhoun, 95 U.S. 710,24 L. Ed. 544; Killingsworth v. Portland Trust Co., 18 Or. 351, 7 L.R.A. 638, 17 Am. St. Rep. 737, 23 P. 66; Scott etc. Co. Ltd. v. Leake (1908), 9 Cal. App. 511, 99 P. 731; Old Settlers Inv. Co. v. White, 158 Cal. 236, 110 P. 922; American Soda Fountain Co. v. Stolzenbach, 75 N.J.L. 721, 68 A. 1078, 127 Am. St. Rep. 822, 16 L.R.A. (N.S.) 703; Jotter v. Charles B. Marvin Inv. Co.,67 Colo. 555, 189 P. 22; Mulherin v. Kennedy, 120 Ga. 1080,48 S.E. 437; In Re Roth's Estate, 107 Misc. 598, 176 N.Y.S. 887; In Re Goddard, 94 N.Y. 544; Louisville etc. Co. v. Herndon's Administrator, 126 Ky. 589, 104 S.W. 732, 31 Ky. L. 1059.

The word "persons" in the Nevada statute relating to those entitled to administer estates of deceased persons includes a corporation. Simons v. Campbell, supra; Louisville etc. Co. v. Herndon's Administrator, supra; American Soda Fountain Co. v. Stolzenbach, supra; Martin v. Atlas Estate Co. (N.J.),65 A. 881. The Majority opinion in Fellows v. First National Bank (Mich.), 159 N.W. 335, is also an emphatic authority against appellant's contention. "The word `person' includes a company, partnership, association or corporation as well as a natural person." Sec. 5475, Rev. Laws.

It is not contrary to the policy of the Nevada laws for a foreign corporation to act as administrator, and consequently a corporation may so act in this state. 12 R.C.L. 11 (Foreign Corporations), sec. 5; 12 R.C.L. 13, 14, sec 6; 14A C.J., 1217-1218; 14A C.J. 1327; Commonwealth Acceptance Corporation v. Jordan, 198 Cal. 618, 246 P. 796. If the Nevada banking act does not, as we contend it does, affirmatively show that the Nevada legislature contemplated that foreign trust companies might carry on their business in the State of Nevada, the very fact that the Nevada legislature has granted to domestic trust companies the power to act as executors and administrators shows that it is the policy of the state to permit corporations to so act, and this policy will include foreign corporations in the absence of the expression of a positive intention to the contrary. In Re Rawitzer's Estate, 175 Cal. 585, 166 P. 551; Fidelity etc. Co. v. Niven, supra; Fellows v. First National Bank, supra; In Re Bailey's Estate, 31 Nev. 382, 103 P. 232. It is contended by appellant and entirely acquiesced in by this writer that a corporation cannot be appointed executor or administrator at common law because of its inability to take the oath of office (Thompson on Corporations, 3d ed., sec. 2233), and that such appointments are entirely dependent upon some legislative enabling act providing the manner in which a corporation may take the oath. It was not until the year 1927 that the legislature of this state passed an amendment to section 5910, Rev. Laws, which appears in the session laws of 1927, p. 28, in which amendment statutory authority is given to a domestic corporation or a banking corporation to take the oath of office as executor or administrator through one of its officers. It is earnestly contended that prior to the adoption of this amendment no corporation could act as executor or administrator in this state, and that the right as it now exists is entirely confined to banking corporations and Nevada corporations qualified to transact a trust business. In the case at bar a foreign corporation was appointed administrator, and this in the year 1923, four years before any character of corporation was authorized by the statute to qualify in this capacity.

We also agree with counsel for appellant in his contention that where there is a special act for the incorporation of banks and trust companies, and general laws under which foreign corporations may come into the state and do business, such general laws relate only to the right of foreign corporations to transact general corporate business in this state, and do not authorize them to come into the state for the purpose of transacting banking and trust company business, for which a special state charter is required. Authorities on this point are cited by appellant.

The writer feels, however, that there is a more direct prohibition against the right of a foreign corporation to transact trust company business or to act as executor or administrator than the general proposition hereinabove discussed. The banking act of 1911 (Rev. Laws, secs. 616-693, inc.), in addition to being a general law for the incorporation of domestic banks and trust companies, is a limitation of the right to transact either a banking or a trust company business, as defined in the act, to banking corporations organized under the provisions of that act, or national banks doing business in this state, except that banking and trust corporations duly organized prior to the year 1911 are permitted to continue such business as originally incorporated. This would exclude all other Nevada corporations and all foreign corporations. Attention is called, in this connection, particularly to the provisions of sections 619, 687 and 690, Rev. Laws. Similarly, no corporation can transact any of the kinds of business mentioned in sec. 620, Rev. Laws, and this includes acting as executor and administrator of an estate, unless it was qualified as a trust company in Nevada prior to 1911, or unless it has since been incorporated under the provisions of the banking act and not as an ordinary corporation.

For the foregoing reasons it is submitted that the appointment of Bankers' Trust Company, a Utah corporation, as administrator of the estate of William N. McGill, deceased, was improper.

OPINION This is an appeal from an order refusing to declare null and void an order appointing Bankers' Trust Company, a Utah corporation, administrator of the estate of William N. McGill, deceased.

The deceased left surviving him a widow and two children who had attained their majorities. Neither of them applied for letters of administration upon the estate, but they all urged the appointment of said trust company. Said company made application to be appointed such administrator, and in due time, after notice of the hearing on said application, there being no objection made thereto, the court made an order appointing said trust company administrator of said estate, on May 16, 1923. On May 23, 1927, the two sons above referred to applied to the court for an order declaring null and void said appointment. It is from the order denying such application that this appeal is taken by Neil A. McGill, one of the sons mentioned.

Appellant makes four points, namely: That a corporation was not competent to act as an administrator at common law because it could not take an oath; that a corporation is not a person within the purview of our probate statute; that the appointment of a foreign corporation as an administrator is contrary to public policy; and, lastly, that the legislature having enacted a special law governing banks and trust companies, the general law as to foreign corporations does not apply.

The legislature in 1917 amended the then existing law designating who shall be respectively entitled to the appointment as administrator of the estate of a deceased person. It reads:

"First — The surviving husband or wife, or such person as he or she may request to have appointed.

"Second — The children.

"Third — The father, or the mother.

"Fourth — The brother.

"Fifth — The sister.

"Sixth — The grandchildren.

"Seventh — Any other of the kindred entitled to share in the distribution of the estate.

"Eighth — The creditors.

"Ninth — The public administrator.

"Tenth — Any of the kindred not above enumerated, within the fourth degree of consanguinity.

"Eleventh — Any person or persons legally competent." Stats. 1917, p. 355, c. 192.

We concede, without so deciding, that at common law a corporation was not competent to qualify as an administrator. But we do not think that such a concession is entitled to much consideration in this matter.

Here we may say that we are not ready to concede that a corporation is not a "person" in the sense in which that word is used in our probate act. It is universally held that a corporation is an artificial person. This court so held in Ex Parte Rickey, 31 Nev. 82-99, 100 P. 134, 135 Am. St. Rep. 651, and in State ex rel. Curtis v. McCullough, 3 Nev. 216. If the contention made is sound, certain individuals might find themselves without recourse were a testator to leave his will with a trust company for safe-keeping, in case of his death, and the refusal of the company to produce it, as provided in section 2 of the probate act, Rev. Laws, sec. 5858, and similar sections. In the case of Louisville N.R. Co. v. Herndon's Adm'r, 126 Ky. 589, 104 S.W. 732, under a statute providing for the appointment of some discreet person as administrator, it was held that "person" included "corporation." In this connection it may be well to observe that the statute provides that a creditor may be appointed as administrator. If the only creditor were a trust company, could it be contended that such company could not be appointed because it is a corporation? If not, what becomes of the main point?

1, 2. However, we do not consider it necessary to decide these points. Whatever may have been the common law and whatever may be the correct interpretation of the probate act, it is conceded, or must be conceded, that pursuant to legislative enactment a Nevada corporation organized to do trust company business is competent to act as an administrator. Section 5 of an act regulating banking provides: "Any corporation organized under this act may state in its articles of incorporation that it will carry on a trust company business * * * and such corporation shall thereupon have power * * * to act under the order or appointment of any court as guardian, administrator, receiver or trustee." Stats. 1911, p. 291, c. 150, Rev. Laws, 1912, sec. 620.

Thus it is seen that whatever may have been the common law, it is not contrary to the public policy of this state for a corporation to be appointed an administrator of an estate. In this connection it is said that the 1911 act did not authorize the taking of an oath by a corporation which might be appointed administrator pursuant to its terms. It is settled law that a corporation has implied powers to do all acts that may be necessary to enable it to exercise the powers expressly conferred. Sutro Tunnel Co. v. Segregated Belcher M. Co., 19 Nev. 121,7 P. 271; 14A C.J. 252; 25 R.C.L. 980.

In the light of the rule stated, we think an officer could make the affidavit required.

There is no doubt but that the respondent has authority in the State of Utah to qualify as an administrator. Section 424, c. 9, Compiled Laws of Utah, 1907, expressly authorizes the organizing of trust companies with such power, and the articles of incorporation of the respondent as filed with the secretary of state of Nevada expressly states that the company shall have such power.

Having shown that a corporation may be organized under the laws of this state with power to act as an administrator, our public policy is thus established. If there be no statute in Nevada prohibiting a foreign corporation which enjoys in the state of its domicile the privilege of acting as an administrator, under principles of comity, the respondent may enter this state for the purpose of carrying on such business on the same basis as a Nevada corporation.

3. The rule is stated in 14A C.J. p. 1217, as follows: "Under principles of comity, and except as otherwise provided by constitutional or statutory provisions, a corporation created by any state or nation is permitted to enter other states, and there to exercise all legitimate powers conferred upon it and to carry on as a corporation any business not prohibited by the local laws or against the local public policy. The rules of comity are subject to local modification by the law-making power. But until so modified they have the controlling force of legal obligation, and it is the duty of the courts to observe and enforce them until the sovereign otherwise directs. The comity involved is the comity of the state, not of the courts, and the judiciary must be guided by the principles and policy adopted by the legislature. No restrictions can be imposed by the courts without the sanction of the law-making power. This comity must be presumed to exist, and does exist, until a state expresses an intention to the contrary in some affirmative way, that is, by direct enactments on the subject, or by its public policy deduced from the general course of legislation or the settled adjudications of its courts of last resort. Legislative silence upon the subject is equivalent to permission."

This is the uniform rule, as is shown by a long line of cases cited in support of the text just quoted, including the case of State ex rel. Curtis v. McCullough, 3 Nev. 202.

4, 5. If there were no act in this state authorizing a corporation to act as an administrator, the presumption would prevail that no public policy exists against a foreign corporation which is qualified to so act in the state of its domicile to qualify as such in Nevada. American F. Christian Union v. Yount, 101 U.S. 352, 25 L. Ed. 888; Thompson v. Waters,25 Mich. 224, 12 Am. Rep. 243; 8 Fletcher Encyc. Corp. par. 5740.

But it is said that the Nevada act authorizing the incorporation of banking and trust companies prohibits foreign corporations from doing trust company business in this state, notwithstanding the fact that the general corporation law expressly authorizes foreign corporations to do business in Nevada.

It is said that, though this intention is not expressed in definite terms, it is apparent from a reading of the act as a whole. We cannot agree with the contention. Section 47 of the act, Rev. Laws, sec. 662, provides: "No individual, * * * trust company, corporation, company or other corporation, incorporated under the laws of this state, or of any other state or territory or foreign country, doing a banking business in this state, * * * shall engage in the banking business in this state without first obtaining from the bank examiner a license. * * *"

This section referring to foreign trust and banking companies expressly contemplates their doing business in this state, and the only inhibition placed upon them is that they shall not do abanking business in this state until they have obtained a license. The respondent, so far as appears, has not sought to do a banking business in this state, but only a trust company business for the doing of which no such condition is imposed.

6. There is not a copy of the petition for the appointment of an administrator of the estate of the deceased in the record in this matter, nor any showing as to the evidence introduced when the application for such appointment was heard by the court; hence, in view of the nature of this proceeding, we must conclusively presume that such petition set forth a full compliance with all of the statutory requirements, whatever they might have been, and that proof was introduced to sustain them.

Taking the view we do, it is not necessary to further consider the points discussed in the very elaborate briefs in the matter nor to analyze and distinguish the cases cited. We deem it proper to say, however, that we do not attach the importance to the opinion in Re Avery, 45 Misc. Rep. 529, 92 N.Y.S. 974, contended for by appellant. It is largely based upon a construction of a statute of New York, by a surrogate judge, and has never been approved by any higher court of the state. We do not think the point made in that case to the effect that the corporation in question in that matter not being domiciled in New York, and hence not subject to the jurisdiction of the courts of that state, could appeal to us for the reason that it appears from the record in this matter that the respondent has appointed an agent in Nevada upon whom service of process might be made, and the further reason that with us a nonresident is not disqualified for that reason alone. In Re Bailey, 31 Nev. 382, 103 P. 232, Ann. Cas. 1912A, 743. But the reasoning of the New York judge in that matter merely goes to a matter of policy. We think the great weight of authority is against the conclusion reached in that opinion. Some of the cases so holding are: Lincoln Trust Co. v. Gaddis Perry Co., 15 Ariz. 372, 139 P. 461, Ann. Cas. 1915D, 1091; Deringer's Adm'r v. Deringer's Adm'rs, 5 Houst. (Del.) 416, 1 Am. St. Rep. 150; In Re Rawitzer's Estate, 175 Cal. 585,166 P. 581; Fellows v. First National Bank, 192 Mich. 640, 159 N.W. 335.

For the reason given the order appealed from is affirmed.