Opinion
October 16, 1951. On Rehearing April 1, 1952.
Appeal from the Circuit Court, Dade County, George E. Holt, J.
Leo Rose, Jr., and Meyer, Weiss Rosen, all of Miami Beach, for appellants.
Louis Heiman and Myers, Heiman Kaplan, all of Miami, for appellee.
Affirmed.
SEBRING, C.J., and THOMAS, ADAMS and HOBSON, JJ., concur.
TERRELL, CHAPMAN and ROBERTS, JJ., dissent.
On Rehearing Granted
Upon a careful reconsideration of this cause, and after having heard reargument of counsel, we have reached the conclusion that we should adhere to our former judgment of affirmance.
SEBRING, C.J., and THOMAS, HOBSON and MATHEWS, JJ., concur.
TERRELL, CHAPMAN and ROBERTS, JJ., dissent.
Although the writer rendered the final decree in the case of Webster v. St. Petersburg Federal Savings and Loan Association, 155 Fla. 412, 20 So.2d 400, which was reversed by this Court upon appeal and although the conclusion reached by three members of the Court in the instant suit might appear to be consonant with the final decree in the Webster case, supra, which, as aforementioned, was reversed, I cannot agree to reversing the final decree entered herein by the learned Chancellor. Error has not been made apparent, clearly or at all. However, if I were of the view that judgment of reversal should be entered in this case I would still be unable to concur in the opinion prepared by Mr. Justice Chapman, because I have the firm conviction that said opinion should expressly declare that we are receding from this Court's pronouncements in Webster v. St. Petersburg Federal Savings and Loan Association, supra, and many other decisions of this Court, including those cited infra.
The pronouncements of law to which I refer will be found in Headnotes 8 and 9. Headnote 8 states: "To establish trust relationship, evidence must be clear and unmistakable both as to intent to create trust and as to execution of that intent." And in Headnote 9 we said: "Words and acts relied on to establish trust must be unequivocal, implying that person holds property as trustee for another, and there must be a present executed gift of the equitable title without reference to it taking effect at some future time." (Italics supplied.)
A study of the testimony in this case discloses that the words and acts of Jacob Barbash when he turned the certificates of stock (4 and 5) over to his attorney Milton Weiss were not so unequivocal as to justify the implication that Milton Weiss held the certificates as trustee or escrow agent for others, namely David and Leo Barbash. Nor can it be said that the evidence, taken as a whole, shows clearly and unmistakably, or at all, that Jacob Barbash upon turning the certificates over to Milton Weiss divested himself of all dominion and control thereof. Consequently, since there was no effectual unconditional delivery of the certificates by Jacob Barbash during his life a valid gift inter vivos was not shown to have been completed. See In re Slawson's Estate, Fla., 41 So.2d 324; Lowry v. Florida National Bank of Jacksonville, Fla., 42 So.2d 368; Roe v. Roe, 98 Fla. 840, 124 So. 734; Leonard v. Campbell, 138 Fla. 405, 189 So. 839 and Dodson v. National Title Insurance Co., 159 Fla. 371, 31 So.2d 402.
It is possible that some members of the Court were influenced by the conclusions of Milton Weiss to which he testified as hereinbelow delineated. I call attention to our holding in Dodson v. National Title Insurance Co., supra, to the effect that the testimony of the escrow agent is helpful in determining the relationships of the parties, but his opinion or conclusion as to the rights of the parties is not material. The escrow holder, attorney Milton Weiss, stated as his conclusion that after the deceased Jacob Barbash turned certificates 4 and 5 over to him, he, Weiss, "was holding certificate number 4 for Leo Barbash" and "* * * was holding certificate number 5 for David Barbash." However, he previously testified as follows: "Mr. Jacob Barbash merely told me he was giving these certificates to his two sons, and I would probably hear from them about it, and I asked him if I should call them and tell them so, and he said he would advise me." Although Mr. Weiss testified that Leo Barbash "contacted" him shortly after the certificates were left with him, he was silent as the tomb with reference to whether Mr. Jacob Barbash ever, after the time he deposited the certificates with Weiss, advised the witness anything further concerning the certificates as he had said he would do. Moreover, he did not testify as to what Leo Barbash said to him when he "contacted" him because objection to the question which was designed to elicit such information was sustained, and properly so. Jacob Barbash did not instruct Weiss whether or when the latter should deliver certificates 4 and 5 to the former's sons but left the certificates in the custody of his attorney with parting words to the effect that he would advise Weiss. Under these circumstances Jacob Barbash could have returned at any time to the office of his attorney and could have demanded the return of the certificates, and would have had a right to their return, because the testimony of said attorney shows that Jacob Barbash during his lifetime never divested nor did he intend to divest, himself of dominion over and control of certificates numbers 4 and 5.
The veteran Chancellor's final decree clearly demonstrates that he carefully and studiously analyzed the testimony and applied the settled law to the facts disclosed by the evidence. We should not reverse the final decree entered by him unless we determine that we were in error originally and expressly declare that we are receding from our prior pronouncements which the Chancellor in bounden duty meticulously followed. Some but not all of the special master's findings of facts were upheld by the Chancellor. He sustained a finding of fact made by the special master which is pertinent to the controlling question in this case. That finding is "Although Mr. Barbash lived for 22 months after so transferring such stock, there is no testimony that he ever thereafter advised Mr. Weiss, to notify his sons of such transfer." The Chancellor correctly determined that the special master misconceived the legal effect of the evidence.
With reference to certificates 1 and 2 Leo and David Barbash make no claim to them by virtue of a gift but contend that they purchased the certificates and paid for them by rendering valuable services to the corporation. The Chancellor was eminently correct in holding that Leo and David Barbash failed completely in their effort to establish that they paid a fair and valuable consideration for said certificates 1 and 2.
It is the writer's view that we should not tear down former decisions and lay anew the foundations of the law unless we are impelled to do so by strong and controlling considerations. When we are persuaded that we should depart from the maxim stare decisis et non quieta movere — to abide by things decided, and not to disturb settled points — we should do so unequivocally, positively, directly and make express reference to the fact that we have done so. I am constrained to agree with Alderson, B., when he said in the case of Miller v. Salomons, 7 Exch. 475, on page 543; "My duty is, however, plain. It is to expound, and not to make the law — to decide on it as I find it, not as I may wish it to be." I further quote with approval from Broom, Leg. Max., 7th ed. 118, wherein it was said that the rule is "to abide by former precedents, stare decisis, where the same points come again in litigation, as well to keep the scale of justice steady, and not liable to waver with every new judge's opinion, as also because, the law in that case being solemnly declared, what before was uncertain and perhaps indifferent, is now become a permanent rule, which it is not in the breast of any subsequent judge to alter according to his private sentiments; he being sworn to determine, not according to his own private judgment, but according to the known laws of the land — not delegated to pronounce a new law, but to maintain the old — jus dicere et non jus dare."
The only sound basis upon which a recession from our decision in the Webster case and others of like import can be bottomed is one which involves a meditative and intelligent analysis of the historical development of our modern courts of chancery. The equity courts are known as courts of conscience and are an outgrowth of the old Ecclesiastical Courts of England which were originally known as the Courts of the King's Conscience. Such courts were created for the express purpose of providing judicial tribunals which would not be bound by the harsh, rigid, inflexible rules of the common law when equity and good conscience might require a departure therefrom in the interest of manifest justice. It is true we have a rule to the effect that equity follows the law but the very purpose which motivated the creators of the ancient Ecclesiastical Courts would be defeated if this maxim should be adhered to stoically and tenaciously and thus be elevated to the dignity of a general principle. Indeed, in truth and in fact, there would be no Equity Courts — Courts of Conscience — as such, were we to dogmatically and religiously hold to the last mentioned rule as a hard, fast, inescapable barrier to the administration of simple justice as it might be dictated by equity and good conscience. The distinction between a common law court and a court of equity would be one without a real or discernible difference. The difference between them would be in name only.
The writer, in cases similar to the Webster case, could be persuaded by the foregoing line of reasoning to inject a degree of flexibility into the maxim, "Equity follows the law," as it was originally intended should be done in a chancery case wherein the equities and good conscience point unerringly toward the correctness of the position of one litigant and against that of the other. It is when the equities are equal that the law must prevail. The maxim "Equity follows the law", should be construed and applied in the light of the real purpose sought to be accomplished by the establishment of courts of equity and which is inherent in such courts. It should be interpreted with reference to all other equitable maxims, particularly the following: "Equity regards and treats that as done which in good conscience ought to be done"; "Equity looks to the intent rather than to the form"; and last (but by no means least, because of the comparison which I invite between it and the maxim that "Equity follows the law"), "Where there is equal equity, the law must prevail." (Italics supplied.) Dr. Pomeroy in his work on Equity Jurisprudence in dealing with the maxim "Equity follows the law", said: "The maxim is, in truth, operative only within a very narrow range; to raise it to the position of a general principle would be a palpable error. * * * it is plain that the maxim, Equity follows the law, is very partial and limited in its application, and cannot, like all the other maxims discussed in this chapter, be regarded as a general principle."
In the Webster case all of the evidence of disinterested witnesses was uncontradicted and without question demonstrated the clear intention of the donor who answered his final summons with the definite and consoling thought that the intended recipients of his generosity would receive in full measure the benefits of his bounty. Moreover, the donor in that case by creating the joint bank account authorized and in legal effect instructed the trustee (St. Petersburg Federal Savings Loan Association) upon demand to turn over any part or all of the deposit which was the subject of the gift to the donee. In all fairness, it must be stated that the donor also had the right to withdraw the entire deposit or any portion thereof. He did not do so, however, and what is even more important, Webster thought he had carried out his intention to make a gift. His mistake was one of form or mode, not of heart or mind. He left no parting remark to the effect that he would advise the trustee exactly what the trustee's powers and duties would ultimately be. Had he made such statement, or one of similar import, he would have evidenced an unsettled frame of mind with respect to his intent, as did Jacob Barbash in the case now under consideration. Both Webster and Barbash created situations wherein either one at his own election could become an "Indian giver." However, Barbash by his qualified statement to Weiss showed conclusively that he intended to create such a situation. The instant suit does not present a picture nearly so forceful or appealing to an equity court as the one which was depicted by the testimony in the Webster case or some other cases which have come to my attention, notably Harvey v. Hubbard, Fla., 38 So.2d 303.
The final decree entered by the learned Chancellor should be affirmed.
THOMAS and MATHEWS, JJ., concur.
CHAPMAN, J., dissents.
The defendants-appellants on this appeal contend that the Chancellor below, in entering the final decree against them in favor of the plaintiff-appellee, misconstrued or misinterpreted the legal effect of the testimony; also there are no facts in the record legally sufficient to support the findings and conclusions of the Chancellor. The Special Master to whom the cause was referred, saw the witnesses and heard them testify and thereafter in his report to the Chancellor recommended that a decree be entered dismissing the bill of complaint, but the Chancellor sustained plaintiff's exceptions to the Master's report, refused or declined to follow the recommendations to enter an order dismissing the complaint, but entered a final decree granting the relief prayed for in the bill of complaint. The defendants appealed.
It was the Special Master's conclusion and recommendation to the Chancellor that the evidence, when considered in its entirety, showed a valid gift of Certificates of stock No. 4 and No. 5 in J. Barbash Sons, Inc., by the father, Jacob Barbash, to his sons, David and Leo Barbash, on January 11, 1944, approximately one year prior to his death. It appears that the father signed the assignments on the above numbered shares of stock in the office of Milton Weiss, his attorney, and directed that he hold or retain the custody thereof for his sons, David and Leo Barbash. It was Weiss' view that the execution by Jacob Barbash of the assignments of the stock and the immediate delivery of the same to attorney Weiss, who was to hold possession thereof until the sons called for the stock, was a delivery by the father of the stock to the sons. He testified that he felt that it was his duty in following the father's instruction to deliver the stock to the sons on demand. See Jones v. Ferguson, 150 Fla. 313, 7 So.2d 464, and similar cases.
It is possible that some of the authorities cited by the Special Master in support of his views as to the assignment of the shares of stock may be controversial or subject to criticism, but no substantial reason exists for arriving at the improper conclusion on factual matters. We find very little evidence in the record contradictory to that given by attorney Milton Weiss and Leo and David Barbash on the delivery of the stock by the father to the sons through the conduit of the family attorney.
It is my view and conclusion that the evidence affirmatively shows a valid gift of the stock by the father to his sons approximately one year prior to the father's death, and it was reversible error to hold otherwise. The decree appealed from should be reversed with directions to dismiss the bill of complaint.
TERRELL and ROBERTS, JJ., concur.