The question presented involves the right of a receiver of a national bank to sue distributees of a deceased stockholder of the bank without having his claim filed in the regular course of administration of the decedent’s estate.
The case was tried by the court without a jury. The court made a number of separate findings of fact upon which he stated his conclusions of law. He held that the equities were with plaintiff and that plaintiff should recover from defendants the amounts named in the decree. It is from this decree that defendants appeal.
On February 13, 1937, plaintiff, as receiver of the National Bank of Kentucky, brought this suit to recover on an assessment levied February 20, 1931, against stockholders in the BancoKentucky Company. Shareholders of BancoKentucky Company have been held liable for the assessment. Anderson v. Abbott, 321 U.S. 349, 64 S.Ct. 531, 88 L.Ed. 793. At the time of the assessment, Charles Schwartzel owned 920 shares and Margaret Schwartzel owned 2080 shares of BancoKentucky Company. Charles Schwartzel died May 13, 1932. He devised and bequeathed his entire estate to Margaret, his wife. His estate was settled on October 5, 1933. Margaret Schwartzel died May 2, 1934. Her estate was probated and settled in the Floyd County Circuit Court of Indiana on May 22, 1935. Defendants were her children and received assets from her estate.
Under the national bank act, Federal Reserve Act, § 23, 12 U.S.C.A. § 64, a stockholder of a national bank is responsible for the debts of the bank to the amount of the stock owned by him at the par value thereof in addition to the amount invested *410in such stock, and a contingent obligation to pay an assessment is rendered absolute from the date of the assessment by the Comptroller of the Currency, Pufahl v. Estate of Parks, 299 U.S. 217, 57 S.Ct. 151, 81 L.Ed. 133, but there is no federal statute making distributees of a deceased stockholder of a national bank liable for the deceased stockholder’s default. We have here, as will be presently shown, only a right derived solely from a State and plaintiff may enforce his claim only in conformity to the law of that State. Campbell v. Haverhill, 155 U.S. 610, 15 S.Ct. 217, 39 L.Ed. 280; McDonald v. Thompson, 184 U.S. 71, 22 S.Ct. 297, 46 L.Ed. 437; Pufahl v. Estate of Parks, supra, 299 U.S. 225, 57 S.Ct. 151, 81 L.Ed. 133; and Guaranty Trust Co. v. York, 326 U.S. 99, 65 S.Ct. 1464, 89 L.Ed. 2079, 160 A.L.R. 1231.
That statute of Indiana, § 6-1001, Burns’ Indiana Stat.Ann. 1933, provides that unless a claim ha? been filed against an estate “at least thirty (30) days before final settlement of the estate, it shall be barred, except as hereinafter provided in case of liabilities of heirs, devisees, and legatees.” In our case, no claim was filed by plaintiff against the estates in question and therefore his claim was barred unless he brought himself within the requirements of § 6-1901. That section, § 6-1901, Burns’ Indiana Stat. Ann. 1933, provides that “The heirs, devisees and distributees of a decedent shall be liable, to the extent of the property received by them from such decedent’s estate, to any creditor whose claim remains unpaid, who, six (6) months prior to such final settlement, was insane, an infant or out of the state; but such suit must be brought within one (1) year after the disability is removed: Provided, That suit upon the claim of any creditor out of the state must be brought within two (2) years after such final settlement.”
Plaintiff’s original complaint alleged that the defendants were distributees of estates of holders of BancoKentucky stock and as such were indebted to plaintiff as receiver of the National Bank of Kentucky, but the complaint contained no averment that plaintiff was out of the State of Indiana six months prior to the. final settlement of the two Schwartzel estates. October 18, 1938, plaintiff filed an amendment to his complaint alleging for the first time that he had never been a resident of Indiana and that he had been out of the State of Indiana “during all times since the closing of the National Bank of Kentucky, November 17, 1930.” In their answer and as a defense, defendants relied on the Indiana statutes and put in issue the allegations of the complaint as amended.
A creditor whose debt remains unpaid after the final settlement of his deceased debtor’s estate has no right at common law to proceed against the distributees of his debtor. Fisher v. Tuller, 122 Ind. 31, 23 N.E. 523. Indiana, however, provides for such a contingency, but before that right may be enjoyed the plaintiff must bring himself within the conditions upon which the right rests. Clevenger v. Matthews, 165 Ind. 689, 76 N.E. 542.
The vital question was whether plaintiff was out of the State of Indiana during the six-month period prior to October 5, 1933, the date of the final settlement of the estate of Charles Schwartzel, deceased, and during the six-month period prior to May 22, 1935, the date of the final settlement of the estate of Margaret Schwartzel, deceased.
As we have already observed, “the plaintiff must bring himself, without excuse, fully within the conditions upon which the right rests,” Clevenger v. Matthews, supra, 165 Ind. 693, 76 N.E. 543; hence the burden of proving that plaintiff was out of the State of Indiana six months prior to the final settlement of the Schwartzel estates was not upon defendants, but rested upon plaintiff.
The record discloses that plaintiff was appointed receiver of the National Bank of Kentucky on December 16, 1932, and that on October 18, 1938, plaintiff, without fixing any date, testified that as receiver he made one journey.to Washington County, Indiana, to attend the trial in a case which was postponed. On cross-examination he stated that he was not in Indiana during the crucial period, but immediately thereafter he testified that he could not recall whether he had been in Indiana during such time. He also admitted that he had traveled numerous times by train between *411Louisville, Kentucky, and Chicago, Illinois; that he had been across the bridge (referring to the bridge over the Ohio River between Louisville, Kentucky, and New Albany, Indiana) while acting as receiver; that he did not know the dates of these various trips; and when asked, “You have been in and out of Indiana quite a good deal, haven’t you, between the years 1932 and 1935?” he answered, “I have been at New Albany two or three times with reference to the affairs of a certain creditor, here in New Albany.”
As we have noted, the court made findings of fact, but the findings of fact do not include a finding on the essential issue. Plaintiff, however, argues that such a finding is essentially contained in the decree rendered. Even so, our examination of the record has convinced us that the evidence has not met the test of strict proof required in order that plaintiff might have the benefit of the statutes relied upon. It furnishes no support for a finding that plaintiff was “out of the State” during the crucial period. If we assume that such a finding is implicit in the decree, we are of the opinion it is not supported by the evidence and is therefore clearly erroneous.
The decree of the District Court is reversed.