"The object was security, and the difference is one of words, rather than substance." ( Bank Commissioners v. Granite State Provident Assn., 70 N.H. 557; 49 A. 124.) We conclude, therefore, that the claimant is entitled to share pro rata with other policyholder creditors in the distribution of 7.3 per cent by the liquidator for the face amount of its claim after deducting the dividend received thereon in Ohio.
The principle is the same in either case, and looks to the same end, that of ultimate equality, as nearly as possible, of distribution of the debtor's assets among its general creditors wherever resident. 1 Clark on Receivers, § 321; 24 Corpus Juris, 1125; Sands v. E.S. Greeley Co. (C.C.A.) 88 F. 130; Brooks v. Smith (C.C.A.) 290 F. 33, 38; People v. Granite State Provident Association, 161 N.Y. 492, 55 N.E. 1053; Frowert v. Blank, 205 Pa. 299, 54 A. 1000; Mitchell v. Liberty Clay Products Co., Receiver, 291 Pa. 282, 139 A. 853; Smith v. Electric Machinery Co., 83 Pa. Super. 143; Bank Commissioners v. Granite State Provident Association, 70 N.H. 557, 49 A. 124, 85 Am. St. Rep. 646. This principle was recognized by the Supreme Court in Blake v. McClung, supra, in passing on the constitutionality of the Tennessee Act in question when it suggested a hypothetical case which is particularly apposite to this case.
The Ohio viewpoint, that such a fund is a trust fund for the protection of Ohio policyholders only, and that the beneficiaries are secured creditors, has been the general view of deposits made under similarly worded statutes. ( Blake v. McClung, 172 U.S. 239, 257; People v. Granite State Provident Assn., 161 N.Y. 492, 496, 497; Matter of People [ Norske Lloyd Ins. Co.], 249 N.Y. 139, 149; Bank Commissioners v. Granite State Provident Assn., 70 N.H. 557.) Under the law of Ohio this claimant was, therefore, a secured creditor, notwithstanding that the security was not in its possession but was held in trust for its benefit by the Ohio Superintendent of Insurance. It was a secured creditor as would be a bondholder where a trustee held collateral for his benefit and for the benefit of other bondholders. ( State ex rel. Haavind v. Crabbe, 114 Ohio St. 504; State ex rel. Van Schaick v. Bowen, supra; Western Assurance Co. v. Halliday, 110 Fed. Rep. 259; affd., 126 Fed. Rep. 257.) The same principle has been applied in this State. ( People v. Granite State Provident Assn., 161 N.Y. 492.
"The provisions of the statute of this state relating to the insolvency of an institution of this kind (P. S., c. 162, ss. 12-25) form a complete system of insolvency law, under which the property of the institution may be placed in the custody of the law, converted into money, and divided among its creditors, and the corporation practically dissolved." Bank Commissioners v. Association, 70 N.H. 557, 560. See also Brown v. Folsom, 62 N.H. 527, 528.
Right of the Superintendent of Insurance of New York to sue in other States. Constitution of the U.S., Art. IV, Sec. 1; Constitution of Texas, Art. 1, Sec. 19; Revised Statutes of Texas, 1911, Arts., 4928-4940, incl.; Insurance Law of N.Y., Sec. 63; Relfe v. Rundle, 103 U.S. 222; Converse v. Hamilton, 224 U.S. 243; Bernheimer v. Converse, 206 U.S. 516; Howarth v. Lombard, 175 Mass. 570; Howarth v. Angle, 162 N.Y. 179; Bank Comrs. v. Granite St. P. Ass'n., 70 N.H. 557; Bockover v. Life Ass'n., 77 Va. 85; Murfree on Foreign Corporations, Sec. 488; Sterrett v. Second Natl. Bk., 246 Fed., 753. The District Court of Walker County was without jurisdiction to direct its receiver to take charge of the corpus of the statutory trust in the hands of the Treasurer of the State of Texas or to direct its distribution through such receiver, for the reason that the trust was one which could not be administered by any person other than the State Treasurer.
There must be a final judgment on the merits in order that the judgment may create an estoppel. Hearn v. Railroad, 67 N.H. 320; Gregg v. Company, 69 N.H. 247; Pittsfield v. Exeter, 69 N.H. 336; Ordway v. Railroad, 69 N.H. 429; Bank Commissioners v. Association, 70 N.H. 557; MacDonald v. Railway, 71 N.H. 448; Boston Maine R. R. v. Sargent, ante, p. 455. An heir takes through — not from — his ancestor; so the guardian cannot maintain this proceeding on the strength of her ward's right as John's heir. Kimball v. Eaton, 8 N.H. 391, Esty v. Long, 41 N.H. 103, Stevens v. Morse, 47 N.H. 532. If the guardian has any right in behalf of her ward as a creditor, such interest is protected by the decree in favor of the administrator.