The subject-matter of this suit is ten shares of the capital stock of the Blue Mountain Forest Association, a corporation organized under the general laws of the state. Although the property of the corporation consists largely of real estate, these shares are choses in action, or property in the nature of choses in action, — not realty. 1 Mor. Corp., ss. 224, 225; 1 Cook Corp., s. 12; 1 Thomp. Corp., ss. 1066, 1070; 3 Ib., s. 3317.
The plaintiff's alleged title to the shares depends solely upon the fact that he is the only child of the late Mary C. Champollion, who, he alleges, was the owner of them at the time of her decease. He does not claim that any decree has been made in the course of an administration of her estate by virtue of which he has acquired a title, but, in effect, says that the law, operating upon the fact that he is her only child, transferred her title to him, ex proprio vigore. He does not direct attention to any particular statutory provision which operates in this manner, but seems to rely upon the common law.
According to the common law, personalty did not, like realty, descend immediately to the heir upon the decease of the owner, but passed to the personal representative, to be used primarily for the payment of debts and other charges against the estate. Anciently, if there was any surplus, the administrator held it to his own use. The first statute of distribution was 22 and 23 Car. II, c. 10, enacted in 1670. By it the administrator was required to give a bond with two or more sureties to return an inventory; to administer the goods, chattels, and credits of the deceased according to law; to render a true and just account of his administration at or before a date specified; and to deliver all the rest and residue of the goods, chattels, and credits which should be found remaining upon settlement of his accounts unto such persons as the judge should by decree, pursuant to the statute, limit and appoint. Archbishop of Canterbury v. Tappen, 8 B. C. 151. It provided that one third part of the rest and residue, or "surplusage," was to go to the widow, if any, and the residue in equal shares to the children or their representatives, making due allowance for advancements; or, if there were no children or representatives of children, one half was to go to the widow, and the residue equally to the *Page 82 next of kindred in equal degree and their representatives. If there was no widow, the whole was to be distributed to the children or next of kindred, as the case might be. 2 Kent 420. The statutes of distribution of the several states are based upon this statute, and in a majority of the states the distribution is to the same persons, in the same proportions, and subject to the same regulations in substance. Sch. Ex. Adm., s. 495; 2 Kent 426. The provisions of the statutes of this state are very nearly the same as those of the English statute. P. S., c. 188, s. 12; Ib., c. 195, s. 10; Ib., c. 196, ss. 1, 6.
If Mrs. Champollion's domicile was in this state at the time of her decease, the plaintiff has failed to allege or prove that he has acquired a title to the stock in question under the statutes of the state. Until a decree of distribution, "neither the widow nor the next of kin has any title to the personal estate, and, of course, can maintain no action to recover it." Weeks v. Jewett, 45 N.H. 540, 542; Bartlett v. Hill,69 N.H. 197. If her domicile was elsewhere, as the plaintiff's allegations and the defendants' admissions tend to show, administration upon her estate here, if any there were, would be merely ancillary, and the plaintiff's right to any balance of property in the administrator's hands would depend upon the laws of her domicile. Goodall v. Marshall, 11 N.H. 88; Leach v. Pillsbury, 15 N.H. 137; Leonard v. Putnam, 51 N.H. 247; Stark v. Parker,56 N.H. 481. If the court were at liberty to search for and ascertain those laws, they are prevented from doing so by the failure of the plaintiff to furnish definite information of the facts upon which domicile depends. In either contingency, the plaintiff does not show that he is entitled to maintain the suit.
It should also be borne in mind that it is only the "surplusage," or the portion of the personal estate "remaining in the hands of the administrator on settlement of his administration account," that is subject to distribution under the statutes of distribution; and for anything that appears in the case, the stock in question, if it belonged to Mrs. Champollion, may be required to pay debts or charges against her estate.
It appears that other parties are interested in the questions as to which the defendants in their answers pray for direction. Mrs. Borrowe, a child of Mr. Corbin and presumably interested in his estate, denies that Mrs. Champollion had any title or right to the stock in question. She further claims that the Corbin stock in the corporation should be sold without regard to the restraining provisions of the by-laws on the subject. The corporation itself and all the other stockholders are interested in the latter question. If the court of this state is authorized to comply with the defendants' *Page 83 prayer, — a point that has not been considered, — it would not undertake to do so until these parties were given an opportunity to be heard upon the questions.
It further appears that the question of fact whether there was a perfected gift of the stock by Mr. Corbin to Mrs. Champollion has not been determined. This and all other questions of fact should be determined in the superior court, if the suit is prosecuted further in this state. "A question of fact is not ordinarily determined at the law term, however strong or conclusive upon one side or the other the evidence recited in the case may seem to be, and though all the evidence relating to it is reported." Metcalf v. Weed, 66 N.H. 176, 178; Martin v. Livingston,68 N.H. 562; Fellows v. Fellows, 68 N.H. 611. Neither is a mixed question of law and fact ordinarily determined in this court. Jones v. Company,62 N.H. 488, 490.
Case discharged.
All concurred.