Fowler v. Gowing

Decision Date20 April 1907
Citation152 F. 801
PartiesFOWLER v. GOWING.
CourtU.S. District Court — Northern District of New York

Fowler Crouch & Vann, for complainant.

White Cheney & Shinaman, for defendant.

RAY District Judge.

This action comes before the court upon an agreed or stipulated state of facts; the material ones being as follows:

(1) The American Exchange Bank of Syracuse was organized on or about December 1, 1897, under the banking laws of the state of New York, and did business as such until about the 12th day of April, 1900, when it was duly reorganized as and became a national banking corporation and subject to the national banking laws. The old stockholders took stock in the new bank thus reorganized for the same amounts, respectively.

(2) The new or national bank continued to do business as such until on or about February 10, 1904, when, being insolvent, and its capital stock having become impaired and worthless, it ceased to do business and closed its doors.

(3) Thereupon a receiver of said bank was duly appointed, and later the complainant here was duly appointed receiver thereof to succeed the original receiver and now is such.

(4) The capital stock of the bank was $200,000, divided into 2,000 shares of the par value of $100 each.

(5) About August 9, 1904, the Comptroller, having found and determined that in order to discharge the debts and liabilities of said bank it was necessary to enforce the individual liability of the stockholders to the extent of $134,000, duly made an assessment and requisition upon the stockholders of said bank to the extent of $67 upon each and every share.

(6) The defendant, D. Henry Gowing, at the time of such failure of said bank, was the owner in his own name and right standing in his own individual name of 60 shares of the stock of said bank, and such assessment thereon he duly paid.

(7) The defendant at such time also held and had in his possession 50 shares of the capital stock of said bank issued to him in the name of 'D. Henry Gowing, Trustee' and standing in the name of 'D. Henry Gowing, Trustee' on the books of said bank.

(8) It is to collect the said assessment on these 50 shares of stock, so issued to 'D. Henry Gowing, Trustee,' of the defendant individually, that this action is brought. Defendant says he is not individually liable; that he held and owned same as trustee of a defined trust for the benefit of his five children: Helen Louise Gowing, Nathan Howard Gowing, Sarah French Gowing, Mary Naomi Gowing, and Daniel H Gowing, and not individually.

(9) The facts in regard to the alleged trust, its creation, and the purchase and issue of such stock, are as follows: About December 31, 1890, the defendant, D. Henry Gowing, with his own money purchased five shares of the installment stock of the Syracuse Co-Operative Savings & Loan Association a corporation organized under and pursuant to the laws of the state of New York, of the par value of $200 each, in the name of 'Helen Louise Gowing, D. H. Gowing, Trustee,' and the stock was issued in that name. Thereafter defendant continued to pay with his own money the installments of $5 per month thereon until same matured on the 11th day of November, 1899. On that day said association paid to said D. H. Gowing, this defendant, said sum of $1,000 by its check drawn on the Bank of Syracuse payable to the order of 'D. H. Gowing, Trustee Helen L. Gowing. ' Said Helen L. Gowing was then about 14 years of age. On or about the 15th day of January, 1890, defendant purchased with his own money ten shares of the stock of said association of the par value of $200 each, purchasing and taking five of such shares in the name of 'Nathan Howard Gowing, D. H. Gowing, Trustee,' same being issued in that name, and purchasing and taking the other five shares in the name of 'Sarah French Gowing, D. H. Gowing, Trustee,' same being issued in that name. Thereafter defendant paid with his own money the installments of $5 per month on such ten shares of stock until same matured, November 11, 1899, when said association by its two checks for $1,000 each, drawn upon the bank of Syracuse, paid same. One of said checks was payable to the order of 'D. H. Gowing, Trustee, Nathan H. Gowing,' and the other to the order of 'D. H. Gowing, Trustee, Sarah F. Gowing. ' Said Nathan H. Gowing was then about four years of age, and said Sarah F. Gowing was then about ten years of age. About May 1, 1890, defendant purchased in the same way of the same association five shares of its same stock of the same par value in the name of 'Mary Naomi Gowing, D. H. Gowing, Trustee, ' same being issued in that name, thereafter paying the monthly installments with his own money, until maturity of the stock, November 11, 1899, when the association paid to defendant $1,000 by its check drawn on said bank payable to the order of 'D. H. Gowing, Trustee, Mary N. Gowing. ' Said Mary N. Gowing was also an infant. About November 1, 1890, defendant purchased in the same way of the said association five other shares of said stock of the same par value in the name of 'Daniel H. Gowing, Jr., D. H. Gowing, Trustee,' same being issued in that name, and thereafter paid the monthly installments thereon until maturity, November 11, 1899, when there was paid to defendant by the association $1,000 by the check of the association drawn on said bank payable to the order of 'D. H. Gowing, Trustee, Daniel H. Gowing, Jr.' Said Daniel H. Gowing, Jr., was then one year of age. Thereupon, and on the same day, the defendant took the said five checks to the said American Exchange Bank of Syracuse, and informed its officers that he desired to invest said funds represented by said checks for the benefit of his children in the stock of said bank. Thereupon, and on the same day, the officers of said bank procured for the defendant from one J. J. Cummins a certificate of stock in said bank for 45 shares thereof, which was indorsed in blank by said Cummins, and same was delivered to the defendant, who, in payment therefor, duly indorsed and turned over said checks, and same were collected through said bank, and the proceeds turned over to said Cummins. Defendant then surrendered said certificate of stock to the cashier of said bank for transfer to 'D. H. Gowing, Trustee,' and defendant then received therefor certificate No. 123 for 45 shares of the stock of said bank issued in the name of 'D. H. Gowing, Trustee,' and defendant receipted for same under the name 'D. H. Gowing, Trustee,' and the stock stub stated that such stock was issued to 'D. H. Gowing, Trustee.' The cashier of the bank thereupon duly registered in the stock transfer book of the bank the transfer of said stock from said J. J. Cummins to 'D. H. Gowing, Trustee,' and opened an account in said book in the name of 'D. Henry Gowing, Trustee,' separate and apart from the account wherein was recorded the stock held by D. Henry Gowing individually and before referred to, and in such account registered or recorded the transfer of such stock from said J. J. Cummins to 'D. H. Gowing, Trustee.' At this date said Helen Louise Gowing had become 21 years of age. On the 2d day of July, 1902, the defendant surrendered said certificate of stock of the American Exchange Bank of Syracuse to the American Exchange National Bank of Syracuse, and there was issued in place thereof certificate No. 58 for 45 shares of the stock of said American Exchange National Bank, and same was issued in the name of 'D. H. Gowing, Trustee,' and the stub of said certificate in the certificate book showed the issuance of such stock to 'D. H. Gowing, Trustee,' and the defendant receipted for said stock by signing 'D. H. Gowing, Trustee.' This transfer was recorded in the books of the bank, and in the stock transfer book in an account opened and entered in the books thereof in the name of 'D. H. Gowing, Trustee,' and separate and apart from the account wherein was recorded the stock held by the defendant in his own name, 'D. Henry Gowing.' At this date Helen Louise Gowing and Sarah French Gowing had become 21 years of age.

On or about the 24th day of July, 1901, the defendant went to the office of the American Exchange National Bank of Syracuse and stated to the president and cashier thereof that he desired to purchase for the account of 'D. H. Gowing, Trustee,' five additional shares of the stock of said bank, so that it would make ten shares for each of his children. Thereafter the said officers procured and delivered to the defendant a certificate for five shares of the stock of said bank, which had been issued to Frank D. Hennessy, which was duly assigned in blank by said Hennessy, and the defendant then paid over to the cashier of said bank for five shares of stock represented by said certificate $585 of his own money. The defendant then surrendered said Hennessy's certificate to the cashier for transfer to 'D. H. Gowing, Trustee,' and received in exchange therefor certificate No. 22 for five shares of the stock of said bank, which certificate was issued in the name of 'D. H. Gowing, Trustee,' and receipted for by the defendant under the name 'D. H. Gowing, Trustee,' and the stub for the newly issued stock stated that same was issued to 'D. H. Gowing, Trustee.' Said sum of $585 was charged upon an account kept in the name of 'D. H. Gowing, Trustee for Helen L. Gowing, Sarah F. Gowing, N. Howard Gowing, Mary N. Gowing, D. Henry Gowing, Jr.,' in the books kept by the defendant in his own business. This account was opened by the defendant in his own books November 11, 1899, the date when he received the checks from the savings and loan association. On that date the defendant charged himself in this account in his own books as follows:

'D. H. Gowing, Trustee for Henry L. Gowing, Sarah F. Gowing, N.
...

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10 cases
  • Heiden v. Cremin, 9504.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • July 20, 1933
    ...is destructive of section 66 unless the decision be treated as a mere application of Massachusetts practice. See Fowler v. Gowing, 152 F. 801, 815 (C. C. N. Y.). In this connection is cited also Taylor v. Davis, 110 U. S. 330, 334, 335, 4 S. Ct. 147, 28 L. Ed. 163. The gist of the citation ......
  • Maddison v. Bryan
    • United States
    • Supreme Court of New Mexico
    • March 16, 1926
    ...did not so hold; that the effect of Anderson v. Philadelphia Warehouse Co., 111 U. S. 479, 4 S. Ct. 525, 28 L. Ed. 478, and Fowler v. Gowing (C. C.) 152 F. 801 (affirmed 165 F. 891, 91 C. C. A. 569), is the contrary; that under R. S. § 5152, where shares are held in trust, neither the trust......
  • Maddison v. Bryan
    • United States
    • Supreme Court of New Mexico
    • March 16, 1926
    ...so hold; that the effect of Anderson v. Philadelphia Warehouse Co., 111 U.S. 479, 4 S.Ct. 525, 28 L.Ed. 478, and Fowler v. Gowing (C. C.) 152 F. 801 (affirmed 165 F. 891, 91 C.C.A. 569), is the contrary; that under R. S. § 5152, where shares are held in trust, neither the trustee nor the ce......
  • Helfrich's Estate v. Commissioner of Int. Rev.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • July 11, 1944
    ...We do not think that the facts in this case bear out that contention. Every bank deposit in trust is not a Totten trust. Fowler v. Gowing, C.C., 152 F. 801, 808. The present case is distinguishable from the Totten cases on several grounds. Separate trust instruments were executed here and a......
  • Request a trial to view additional results

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