In Lindeman's Estate v. Herbert, 188 Miss. 842, 193 So. 790 (1940) appellants claimed certain stock through Julius A. Mosal, one of the executors, as a gift inter vivos to Mosal.Summary of this case from Banks v. Junk
February 19, 1940. Suggestion of Error Overruled April 1, 1940.
1. EXECUTORS AND ADMINISTRATORS.
Where will directed that corporate stock should be sold by executor for payment of numerous legacies, in proceeding by residuary legatees to compel the inventory of the corporate stock as asset of the estate, burden was on surviving executor and those claiming stock as heirs of an alleged donee, not as purchasers for value, to prove that stock was not part of assets of the estate being administered (Code 1930, secs. 1622, 1651).
Where, at time of alleged gift inter vivos, donee occupied relation to donor of principal and agent, kinship, confidential advisor in business affairs, and an executor to serve without bond and close personal association, trust and affection existed, gift could not be upheld except on clear and convincing proof of full knowledge and independent consent and action on part of the donor.
Where alleged donee who was agent of alleged donor had only key by means of which corporate stock could have been obtained from donors' lock box at bank, and where alleged donee's agent took stock certificates to donor and asked her to endorse them, the making of "gift inter vivos" was not established by the indorsement of the certificates by the alleged donor and their possession by the alleged donee.
Where fiduciary and confidential relationship existed between alleged donee and alleged donor and alleged donee's agent took corporate stock to donor and requested that she indorse certificates and donee had the only key by means of which stock could have been obtained from donor's lock box at bank, and alleged donor lived nearly five months after stock had been indorsed but did not change will directing executors to sell stock to pay legacies, evidence sustained chancellor's determination that a "gift inter vivos" of the stock had not been made (Code 1930, secs. 1622, 1651).
In proceeding involving validity of alleged gift inter vivos of corporate stock, hearsay testimony was rendered competent by not being objected to.
6. EXECUTORS AND ADMINISTRATORS.
Where residuary legatees' petition under oath for more complete inventory merely charged that petitioners were "advised and believed" that testatrix was at the time of her death the owner of certain stock and executor's sworn answer averred that he knew of his own personal knowledge that testatrix made gift of stock to alleged donee, but executor testified to facts which disclosed that averment in answer was made primarily upon information and that he had no personal knowledge of facts, averment of personal knowledge contained in answer of executor was sufficiently overthrown (Code 1930, sec. 383).
7. EXECUTORS AND ADMISTRATORS.
Even though petition of residuary legatees for more complete inventory was sworn to, and answer of ultimate beneficiaries of an alleged inter vivos gift, filed in response to sworn objections and exceptions of the residuary legatees to answer of surviving executor, was sworn to, chancery court was authorized to hear and determine the objections and exceptions without adherence to strick rules of pleading, since in matters testamentary and administration no answers under oath are required whether waived or not (Code 1930, secs. 370, 383).
The execution of a printed formal assignment of corporate stock in favor of alleged donee was not essential to a valid gift inter vivos.
9. APPEAL AND ERROR.
The Supreme Court is not justified in disturbing the finding of a chancellor unless it should appear to the Supreme Court that the chancellor was clearly and manifestly wrong.
APPEAL from the chancery court of Hinds county; HON. V.J. STRICKER, Chancellor.
May Byrd, Green Green, and W.B. Fontaine, all of Jackson, for appellants.
Does the uncontradicted proof establish a completed inter vivos gift of the property involved by the testatrix? The answer to this question will dispose of this appeal, as indicated by the following quotation from the decree appealed from: "The controlling question is, has it been shown that a gift was made." If a gift was made, the chancellor's decree must be reversed and decree rendered for appellants.
In Falconer v. Holland, 5 S. M. 689, in the concluding syllabus it is stated: "It is the policy of the law, in this state, to construe all possession of property to be under the ownership of the party possessing; and where a controversy arises, between creditors of the possessor and the alleged owner, as to whether the possession is under a gift or a loan, and the evidence is conflicting, and there is no positive documentary evidence of title in the claimant, the presumptions of law operate to regard the possession as under a gift, with all their force."
Carradine v. Carradine, 58 Miss. 286; Timberlake v. Shippers Compress Co., 72 Miss. 323; Scherck v. Montgomery, 81 Miss. 426; Jackson Opera House Co. v. Cox, 192 So. 293; Harmon v. McFarlane, 135 Miss. 284; McClellan v. McCauley, 158 Miss. 456; Jones v. Jones, 162 Miss. 501; Gidden v. Gidden, 176 Miss. 98; Howell v. Ott, 182 Miss. 252; Ford v. Byrd, 183 Miss. 846.
The general rule is stated in 12 R.C.L., Section 19, page 942, as follows: "A certificate of stock, like other classes of property, may be the subject of a gift, but in order to effect a gift there must be delivery and intent to make a gift. In the majority of cases wherein the question has arisen it has been held that the delivery of a certificate of stock without formal indorsement or assignment, or without registering it in the name of the donee, is sufficient to constitute a valid equitable gift if the intent of the doner at the time is forthwith to pass title to the donee, though no legal title passes for want of such formalities. The delivery of the instrument is a symbolical delivery of the property."
Hecht v. Boston Wharf Co., 220 Mass. 480, 108 N.E. 65, L.R.A., 1915D, 733; In re Estate of Connell, Deceased, 282 Pa. 555, 128 A. 503, 38 A.L.R. 1362; In re Estate of Chapple, Deceased, 332 Pa. St. 168, 2 A.2d 719, 121 A.L.R. 422; 28 C.J. 658, 659, 672, 674, 675, 682.
The reservation of interest in nowise impaired the validity of the gift. When the certificates passed to Mr. Mosal, the personal property (the subject of the gift) was in his possession, and the law presumes the validity of the gift, the donor having surrendered all dominion or command over the property.
It is respectfully submitted that under the overwhelming and uncontradicted proof contained in this record, and under the uniform holding of the courts generally, a valid gift from Mrs. Lindeman to Mr. Mosal was completed and every condition fulfilled when the only dividend accruing after the transfer of the stock during the lifetime of the testatrix was paid into her estate, as is admittedly shown.
To hold otherwise would be to deny the statement of the testatrix, repeatedly made by her, that "I do not own any stock in the Mississippi Foundry and Machine Company. I have given it to Julius."
It would further deny the express desire to reward her faithful and devoted nephew for the many years of his valuable services, and would force the same consideration for others not standing in such relation.
The right to give property exists as an inherent right of the owner.
Longmire v. Mars, 124 Miss. 77, 86 So. 753; Burnett v. Smith, 93 Miss. 566, 47 So. 117; Baldridge v. Stribling, 101 Miss. 666, 57 So. 658; 2 Lawrence on Equity Jurisprudence, Sec. 949; Gillis v. Smith, 114 Miss. 665, 75 So. 451; In re Estate of Llewellyn, 296 Penn. 74, 145 A. 810, 66 A.L.R. 222; 28 C.J. 625, 658, 670; In re Chapple, 332 Pa. St. 168, 2 A.2d 719, 121 A.L.R. 422, and note, p. 426; Ratterman v. Lodge, 13 F.2d 805, 807; In re King, 100 N.Y.S. 1090; Compton v. Carr, 59 P. 31; Fant v. Fant, 173 Miss. 472, 162 So. 159; St. Louis, etc., R. Co. v. Nichols, 161 Miss. 795, 138 So. 364; Cunningham v. State, 56 Miss. 269, 31 Am. Rep. 360; Hitt v. Terry, 92 Miss. 671, 46 So. 829; Batiste v. State, 165 Miss. 161, 147 So. 318; Secs. 381-383, Code of 1930; Jacks v. Bridewell, 51 Miss. 881; Waller v. Shannon, 53 Miss. 500; Saffold v. Horne, 72 Miss. 470, 18 So. 433; Kyle v. Rhodes, 71 Miss. 487, 15 So. 40; Shackelford v. Brown, 72 Miss. 380; 1 A.L.R. 48, 77, 105, 106; Murray v. Johnson, 1 Head. 35; Bellows v. Stone, 18 N.H. 465; Brown v. Mortgage Co., 86 Miss. 388, 398; 21 C.J. 561; Am. File Co. v. Garrett, 110 U.S. 228, 28 L.Ed. 149; 10 R.C.L. 545, sec. 328; Lenox et al. v. Prout, 3 Wheat. 520, 4 L.Ed. 449, 451; Development Co. v. Silva, 125 U.S. 247, 31 L.Ed. 678; Petrie v. Wright, 6 S. M. 647; Ralston v. Rurpin, 32 L.Ed. 747; Sobraines v. Sobraines, 31 P. 910; Cresswell v. Cresswell, 164 Miss. 871, 144 So. 42; 18 C.J. 424, 503; Thornton, Gifts and Advancements, p. 451, sec. 456; Zimmerman v. Frushour (Md.), 69 A. 796, 16 L.R.A. (N.S.) 1087; 2 Pomeroy on Equitable Jurisprudence, p. 1389, par. 959, note 1; Hunter v. Atkins, 3 Myl. K. 113; Hesse v. Hemberger (Tenn.), 39 S.W. 1063; 70 C.J. 793; Moore v. Railroad Co., 59 Miss. 243; Dunlap v. Richardson, 63 Miss. 449; McClellan v. McCauley, 158 Miss. 456, 130 So. 147; Wherry v. Latimer, 103 Miss. 531; Gholson v. Peters, 176 So. 607; Barnett v. Barnett, 155 Miss. 447 ; Scally v. Wardlaw, 123 Miss. 857, 86 So. 625, 627; Moore v. Brooks, 84 Miss. 238, 123 Miss. 301; Gillis v. Smith, 114 Miss. 665, 75 So. 451; Alcorn v. Alcorn, 194 Fed. 275; Security Mutual Life Ins. Co. v. Brunson, 176 Miss. 893, 170 So. 824; Jones v. Jones, 162 Miss. 501, 139 So. 873; Howell v. Ott (Miss.), 180 So. 60; Ham v. Ham, 110 So. 583, 146 Miss. 161; Woodson v. Reynolds, 76 P.2d 41; Bourn v. Bourn, 163 Miss. 71, 140 So. 518; Brooks v. Brooks, 145 Miss. 845, 111 So. 376; Watkins v. Martin, 147 So. 652, 167 Miss. 343; Wall v. Wall, 177 Miss. 743, 171 So. 676; Ford v. Byrd, 184 So. 443, 183 Miss. 846.
If the gift was initially invalid, then it was ratified.
Falconer v. Holland, 5 S. M. 689, 698; Fatheree v. Fletcher, 51 Miss. 271; Pomeroy's Equity Jurisprudence (4 Ed.), Sec. 964, p. 2089; 28 C.J. 44; Pritchard v. Martin, 1 S. M. Ch. 126; 9 Am. Jur. 389, Sec. 46; Farrand Co. v. Houston, 110 Miss. 40, 69 So. 997; 2 C.J.S. 1078; 2 Am. Jur. 181, sec. 227; Meyer v. Morgan, 51 Miss. 25.
The gift if initially invalid, was validated by acquiesence.
W.B. Fontaine was competent to give Mrs. Lindeman independent advice.
Willoughby v. Pope, 101 Miss. 808; 7 C.J.S. 826; 5 Am. Jur. 297; Todd v. Rose, 108 Kans. 64, 193 P. 894, 16 A.L.R. 425; Restatement Law of Agency, sec. 389 et seq.; Post v. Hagen, 71 N.J. 234, 65 A. 1026, 124 Am. St. Rep. 997.
Green Green, of Jackson, for appellants.
Mrs. Elizabeth Lindeman made a valid gift of 109.09 shares of stock of Mississippi Foundry Machine Company, herein called "Company" to Julius Mosal, and in not so holding, the chancellor erred, because:
Appellees not having waived answer under oath, appellant's sworn answer imposed upon the appellees a burden of proof, which burden of proof appellees have not seriously assumed to meet.
Possession of personal property by donee prima facie evidence of gift.
Cancellation is an extraordinary remedy and may not be granted unless the facts are proved by clear and convincing evidence.
2 Lawrence, Equity Jurisprudence, Sec. 949; Gillis v. Smith, 114 Miss. 665, 75 So. 451.
Appellees having stood by until death removed Julius Mosal, may not herein profit from that delay.
Soper v. Cisco (N.J.), 95 A. 1016-1020; 19 Am. Jur. 355, sec. 511.
As to ratification of the gift, see:
Fraud and wrongdoing are never presumed and herein not even suggested.
Robertson Robertson, of Jackson, for appellees.
There was no gift of the 109.09 shares of stock to J.A. Mosal.
28 C.J. 625, 674; McDaniel v. Bank of Pontotoc, 111 So. 459; McClellan v. McCauley, 130 So. 145, 158 Miss. 456; Yates' Estate v. Ala.-Miss. Conference Assn. of Seventh-Day Adventists, Inc., 176 So. 534, 179 Miss. 642 ; Ford v. Byrd, 184 So. 443, 183 Miss. 846; Fant v. Fant, 173 Miss. 472, 162 So. 159; Sec. 383, Code of 1930; Falconer v. Holland, 5 S. M. 689; Carradine v. Carradine, 58 Miss. 286; Timberlake v. Shippers' Compress Co., 72 Miss. 323, 16 So. 530; Gidden v. Gidden, 176 Miss. 98; McWillie v. Van Vacter, 35 Miss. 428, 72 Am. Dec. 127; Howell v. Ott, 182 Miss. 252, 181 So. 740; Estate of Chapple, deceased, 332 Pa. St. 168, 2 A.2d 719, 121 A.L.R. 422, 426.
Even if there were a gift, such gift would not be valid because of the fiduciary relations existing between Mrs. Lindeman and J.A. Mosal.
It is undisputed that Mr. Mosal, the alleged donee, was a nephew of Mrs. Lindeman and was a good business man in whom Mrs. Lindeman reposed the utmost confidence; and it was shown in the record that every investment she had at her death had been made upon his recommendation and approval. Not only did this close fiduciary relation exist between these two people but Mr. Mosal was also the agent for Mrs. Lindeman.
Ham et al. v. Ham et al., 110 So. 583, 146 Miss. 161; Bourn v. Bourn et al., 140 So. 518, 163 Miss. 71; Cresswell v. Cresswell, 144 So. 41, 164 Miss. 871; Watkins et al. v. Martin et al., 147 So. 652, 167 Miss. 343; Fant v. Fant, 162 So. 159, 173 Miss. 472; Meek v. Perry, 36 Miss. 190; Post v. Hagan, 71 N.J. Eq. 234, 65 A. 1026, 124 A.S.R. 997; 3 Words Phrases (3 Series), 594-596.
The chancellor found that Mr. Mosal was agent, nephew, and adviser of Mrs. Lindeman.
When such a relation exists, then the law demands that to establish the gift it must be shown that the donor had competent, independent, disinterested and unbiased advice. It is shown by the record that Mrs. Lindemann had no such advice. Indeed, she had no advice at all. If it should be contended that Fontaine was her adviser, we first deny that he gave any advice whatsoever, and we further say that he falls within the inhibited class because of interest, relationship, etc., and could not give the independent, disinterested, and unbiased advice which the law demands.
Argued orally by George W. May and Garner W. Green, for appellants, and by Stokes V. Robertson, Sr., and Stokes V. Robertson, Jr., for appellees.
This is a contest between certain residuary legatees named in the last will and testament of Mrs. Elizabeth Lindeman, deceased, and the ultimate beneficiaries of an alleged gift inter vivos of certain corporate stock, of the value of approximately $20,000 to $25,000, listed in the will as an asset of the estate, and which stock is alleged by the latter claimants to have been given to Julius A. Mosal by the testatrix a few months prior to her death, but subsequent to the execution of the said last will and testament.
The said Mosal, who was a nephew of the testatrix, and in whose home she resided, was named as one of the executors of the will, and died shortly after her death. He had joined his co-executor in filing an inventory of the assets of the estate, and in which the stock in question was omitted from the list thereof. It was likewise omitted from a supplemental or additional inventory filed by the surviving executor. Subsequently, a petition was filed by the appellees, as residuary legatees, against the surviving executor, as provided for by Section 1651 of the Code of 1930, to compel a more complete inventory on the alleged ground that the inventories returned did not contain a full account of all of the property, goods, chattels and effects of the deceased testatrix.
The will specifically directed that the corporate stock aforesaid, which is the subject matter of the alleged gift, should be sold by the executors along with the other assets of the estate for the payment of numerous legacies therein mentioned, by far the largest of which, in the sum of $10,000, was in favor of the said Mosal. Section 1622 of the Code of 1930 requires that the directions of the will are to be followed by the executor. Hence, the burden of proof was upon the appellants, and particularly those claiming this stock through Mosal, the deceased executor, not as purchasers for value, to prove that the same was not a part of the assets of the estate being administered. This burden of proof rested upon the latter for the further reason that at the time of the alleged gift Mosal occupied the relation to Mrs. Lindeman of principal and agent, kinship, confidential adviser in her business affairs, an executor to serve without bond, and that of close personal association, trust and affection, and which fiduciary and confidential relation was further augmented by other circumstances disclosed by the record, unnecessary to here relate in detail, such as would make applicable the rule announced in the cases of Ham et al. v. Ham et al., 146 Miss. 161, 110 So. 583; Bourn v. Bourn et al., 163 Miss. 71, 140 So. 518; Watkins et al. v. Martin et al., 167 Miss. 343, 147 So. 652, and cases therein cited, to the effect that the alleged gift was presumptively void and unenforceable. At any rate, the same could not be upheld except upon clear and convincing proof of full knowledge and independent consent and action on the part of the donor.
The stock was endorsed in blank by the testatrix a few months prior to her death, at the age of 90 years, and under circumstances not inconsistent with the directions contained in her will for the same to be sold by her executors and applied to the payment of the legacies, with remainder of the net proceeds of the whole estate to go to the residuary legatees therein named. On the reverse side of each stock certificate there was a printed formal assignment and transfer in which the name of the assignee or transferee was to be written in a blank space left for that purpose. The name of Mosal was not written therein, nor was his name mentioned on the occasion when the testatrix endorsed the stock in blank at the request of his agent. What actually occurred at that time, according to the testimony of the agent, was that he took the stock certificates to the home of the testatrix and asked her to endorse them, and that she then asked him, "Are they going to be transferred now?" And to which he replied: "Yes, ma'am, they are going to be transferred now, but you are to get the dividends on them as long as you live." She then wrote her name on the back of the certificates, and they were then delivered back to the agent, who had received them from Mosal prior to this transaction.
The alleged donee's possession of the stock, both before and after its endorsement, was apparently consistent with the relationship which he sustained to the testatrix, and was likewise consistent with her continued ownership thereof, since he, with her full knowledge and consent, had the only key by means of which they could have been obtained from her lock-box at the bank, for any purpose, or returned thereto.
Thus, it will be readily seen that the making of an inter vivos gift is not established by the endorsement of the stock by the testatrix and its possession by Mosal under the circumstances above mentioned.
Moreover, the testatrix lived nearly five months after the stock had been thus endorsed, and she left the executors charged at her death with the responsibility under the terms of her will of administering the stock in question for the benefit of all of the legatees of her estate, without making or suggesting a codicil to the instrument which she had written in her own hand. Nor did she leave any other written memorial of having disposed of this stock by gift, although it was listed in the will and constituted approximately one-third of the value of her entire estate. The proof disclosed that during this interim the testatrix was in full possession of her mental faculties and had a remarkably retentive memory.
As observed by the chancellor in his written opinion, which appears as a part of the record, the agent of Mosal who procured the endorsement of the testatrix on the stock certificates was exceedingly frank in his testimony as to what occurred, and we are of the opinion that the chancellor was correct in holding that the facts related by him in connection with the endorsement of the stock failed to establish the gift.
There were other facts and circumstances testified to, including certain hearsay testimony elicited by counsel for the residuary legatees and rendered competent by not being objected to, which support the contention that such a gift was made, but there are certain deductions that may be reasonably drawn from the further facts disclosed by the record which in our opinion amply sustain the decree of the court below in holding that the gift of this stock, inter vivos, was not clearly shown by the evidence. That which happened subsequent to the endorsement of the stock was inconsistent with what transpired at the time; and a discussion of which events could serve no useful purpose in this opinion.
But, it is insisted that inasmuch as the petition of the residuary legatees for a more complete inventory and their objections and exceptions to the surviving executor's response to said petition did not waive answer under oath, the sworn answers of said executor and of the ultimate beneficiaries of the alleged gift could not be overthrown except by the testimony of two witnesses or of one witness and corroborating circumstances, as provided by Section 383 of the Code of 1930. Responding to this contention, it may be conceded that the petition above mentioned, although sworn to, merely charges that the petitioners are "advised and believe" that the testatrix was at the time of her death the owner of the particular stock in controversy; and while the affidavit thereto states as a fact that the matters and things stated in the petition are true and correct, it is clear that the affiant merely meant to say that it was true that the petitioners were advised and believed that the stock belonged to the testatrix, since that was the averment of the petition then being sworn to. In reply, the answer of the executor, sworn to as aforesaid, was filed, and it averred that he knew of his own personal knowledge that the testatrix made a gift of the stock to the alleged donee. However, as a witness upon the trial of the case, after having been introduced by the petitioners, he testified to facts which disclosed that this averment in his answer was made primarily upon information received from and certain statements made by the alleged donee, and that he had no personal knowledge of the facts or the circumstances under which the gift was alleged to have been made, other than what occurred when the stock was endorsed as hereinbefore stated, when neither the matter of a gift nor the name of a donee was mentioned. Therefore, under the rule announced in the case of Fant et al. v. Fant et al., 173 Miss. 472, 162 So. 159, the facts testified to by this witness, when considered with the other corroborating circumstances were sufficient to overthrow this averment of personal knowledge contained in the answer of the surviving executor. As to the sworn answer of the ultimate beneficiaries of the alleged gift, the same was filed in response to the objections and exceptions of the residuary legatees to the answer of the said executor, and the pleading containing such objections and exceptions was sworn to, not upon information and belief, but by positive oath, and the pleading itself contained a positive and unequivocal allegation that the stock in controversy was not assigned, transferred, conveyed or delivered to the alleged donee thereof during the lifetime of the testatrix. Hence, even if Section 383 of the Code of 1930 had any application, the answers were entitled to be given "only such weight and credit as in view of the interest of the party making the same, and the other circumstances of the case, it may be fairly entitled to." However, in matters testamentary and of administration no answers under oath were required, whether waived or not. Section 370 of the Code of 1930. The chancery court in the matter of estates administered may hear and determine objections and exceptions, etc. without adherence to the strict rules of pleading.
Finally, it is contended that the fact that a confidential and fiduciary relation may have existed between the alleged donor and donee cannot affect the rights of those who now claim the stock by mesne transfer from the donee. In support of that position, our attention is called to the case of Fant et al. v. Fant et al., supra, wherein the Court assumed for the sake of argument that the evidence, plus some admissions in his answer, disclosed a confidential relation between Fant, Sr., and the grantor, but that it did not disclose any such relation between Fant, Jr., and the grantor. That case is not applicable on the point here being considered, for the reason that Fant, Jr., was not claiming title through Fant, Sr., but under a different deed of gift from the grantor, and apparently conveying different land.
While the execution of the aforementioned printed formal assignment in favor of the alleged donee was not essential to a valid gift, yet such an act, or other written memorandum in that behalf, accompanied by the delivery of the stock certificates, would have constituted proof of an intention on the part of the testatrix to part with the ownership thereof; since such intention was not otherwise expressed when they were endorsed in blank under the circumstances disclosed. It is true that the agent who procured the endorsement states that a few days prior to the death of the testatrix, which occurred a few months later, she told him that she was not entitled to receive a certain dividend check on part of the stock in question for the reason that she had given it all to Mosal. Nevertheless, the chancellor was confronted with the further fact that she then asked the agent to get the matter straightened out for her, with the result that this check was returned to the corporation, and a cashier's check in excess of $2,000 for the dividend on all of the stock was forthwith delivered to her, which she endorsed with instructions that the proceeds be deposited to her account. This action on her part was consistent with the understanding which the agent had with her when the certificates were endorsed, and was inconsistent with the idea that she thought she was not entitled thereto. There was no proof that she ever knew that her stock had been surrendered to the corporation and cancelled, and that new certificates had been issued in favor of a trustee under a trust agreement whereby the dividends therefrom were irrevocably assigned to other persons. The contention that she knew this from the fact that she received the dividend check from the trustee bank is untenable, for the reason that the check referred to was merely a cashier's check as heretofore stated.
We deem it unnecessary to discuss more at length the legal questions raised, or to review the numerous authorities cited in the briefs. It is sufficient that we say, under the well established rule, we are not justified in disturbing the finding of the chancellor unless it should appear to us that he was clearly and manifestly wrong. We are unable to so hold. Therefore, the decree appealed from must be affirmed.