No presumptions of ownership should be indulged in as to bank stock where such stock has not been transferred on the books of the bank and record thereof filed in the recorder's office as required by law to pass its title. I therefore cannot agree with the foregoing opinion, holding that it is not necessary to the establishment of stock liability that the shares be transferred on the books. The only case cited in support of such a doctrine is Gillett v. Chicago Title and Trust Co.230 Ill. 373, and there the stock involved was not bank stock but was the stock of an industrial corporation. The same statutory requirement does not apply. Likewise, the citation of authorities referring to national banks is not applicable here, where the stock of a State bank is involved.
It is true that Cora Whitney endorsed and cashed two dividend checks during the period of her administration of her husband's estate. She was the sole heir and sole administratrix. The failure of an administratrix to render a detailed account of receipts and disbursements is in accord with well established practice. In the absence of any unpaid creditors no person can complain of this practice *Page 425 if it is sanctioned by the county or probate court and where no question as to liability of the estate for taxes is involved. She had inventoried the bank stock as property of the estate. The condition of the estate did not require the sale of the bank stock to pay debts. The final report made no mention of the bank stock, although she did charge herself therein, as sole heir, with the receipt of a certificate of deposit amounting to $2200 and a checking account in the Tampico State Bank. She also charged herself with the receipt of money from the sale of certain personal property. From these acts it might well be assumed that she did not intend to take over the bank stock, especially in view of the fact that none of the stock in the name of her husband at the time of his death was ever transferred to her. Neither the name Cora C. Brewer nor Cora Whitney appears in the records of the recorder's office as a stockholder. The twenty-five shares in question were listed in the name of Fred A. Brewer, and, as shown in the recorder's office, remained in his name until the bank closed. No claim was ever filed against Brewer's estate by the Tampico State Bank or by any of the creditors of the bank. In a case recently decided by the Supreme Court of the United States it was held that "there can be no liability on account of assessments made after complete administration, final distribution of all the property and the extinguishment of the estate."Forrest v. Jack, 55 Sup. Ct. 370.
Although Cora Whitney was the sole heir and next of kin of the intestate she contends that she took the stock only as administratrix, and that receiving dividends thereon did not effect its transfer to her as an individual or make her personally liable thereon. In support of this argument she relies upon the case of Golden v. Cervenka, 278 Ill. 409. There we held that "the liability of the stockholders to the creditors, though created by the constitution, is based upon contract." We further said that "the record by which it is determined who are the stocholders of the bank is the *Page 426 record of the bank itself," and only those appearing on the books to be stockholders possess rights and liabilities as such. Likewise in Bell v. Farwell, 176 Ill. 489, we held that liability of bank stockholders, although imposed by statute, arises out of contract. There we said: "Persons who give credit to the corporation do so upon the faith of the personal liability of the stockholders, and upon what principle can it be said that the liability is not contractual?"
Since the liability of a bank stockholder to its creditors is one which he first assumes by his contract to subscribe for and own certain shares of its stock, it must be apparent that such a liability, unless voluntarily assumed, cannot be involuntarily foisted upon an heir of a former stockholder by the Statute of Descent. The bank stock in this case is not shown by the record to have ever been issued or transferred to Cora Whitney, the plaintiff in error. Her control of it, and the receipt of two dividend checks while she was acting as administratrix, were consistent with the fact that she was administratrix and sole heir of her deceased husband's estate, in which she had inventoried this stock. In her final report as administratrix no disposition of the stock is shown. No receipt or other proof is made that she accepted the stock in final settlement of the estate. The record presents nothing to indicate that she held legal title to this stock other than in her representative capacity. If she had procured its transfer to herself, individually, upon the books of the bank, then a different question would have been presented. In re Bingham,127 N.Y. 296, 27 N.E. 1055.
The judgment of the Appellate Court and the decree of the circuit court of Whiteside county should have been reversed. *Page 427