21 S.W. 788 (Mo. 1893), Leete v. The State Bank of St. Louis

Citation:21 S.W. 788, 115 Mo. 184
Opinion Judge:Sherwood, J.
Party Name:Leete v. The State Bank of St. Louis, Appellant
Attorney:John G. Chandler and George R. Lockwood for appellant. E. T. & C. B. Allen for respondent.
Case Date:March 25, 1893
Court:Supreme Court of Missouri
 
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Page 788

21 S.W. 788 (Mo. 1893)

115 Mo. 184

Leete

v.

The State Bank of St. Louis, Appellant

Supreme Court of Missouri, Second Division

March 25, 1893

Page 789

Appeal from St. Louis City Circuit Court. -- Hon. L. B. Valliant, Judge.

The plaintiff by this equitable proceeding, instituted January 15, 1889, sought to compel the defendant bank to transfer to her fifteen shares of its stock then standing on its books in the name of her husband, James M. Leete, defendant, and also to account to her for dividends declared thereon, alleging that such shares were purchased by defendant James M. Leete with money which came to her by the bequest of her father in July, 1876 and January, 1877, and that with some of the money thus bequeathed to her her said husband on the eighth day of February, 1877, bought said stock for plaintiff, but without her consent in writing caused the certificate thereof to be made out in his own name.

The answer of the defendant bank, except that portion exscinded by the demurrer, was as follows:

"This defendant admits its corporation and change of name as in the petition alleged, and further admits that plaintiff, at the time of her marriage with defendant James M. Leete, was entitled to a large amount of property under the will of her father, the late James Harrison, but denies each and every other allegation in said petition contained, and not hereinafter admitted."

The answer of the defendant Leete is an admission of the allegations of the petition.

The referee, John W. Dryden, to whom were referred all the issues in the cause, made report in which he found the facts as follows:

"Plaintiff is the daughter of James Harrison, who died in 1870. He left a will, of which Edwin Harrison was executor, and under which plaintiff was a distributee or legatee. She and defendant Leete intermarried in 1871.

"On July 18, 1876, said executor paid to defendant Leete, on account of plaintiff's share in her father's estate as a distributee under said will, the sum of $ 17,000; and on January 24, 1877, he also paid to him on account of her said share the further sum of ten thousand seven hundred and fifty-five dollars ($ 10,755). Both sums were paid to him by means of bank checks drawn by said executor upon the Mechanic's Bank of St. Louis, payable to the order of defendant Leete. Both said checks were collected by said defendant, and within one or two days after the times of their respective payments to him, as stated above; the proceeds of them, except $ 755 out of the payment of $ 10,755, were deposited by him in the said Mechanic's Bank to his own credit in an account kept by him with said bank in his own name. Up to February 15, 1877, said defendant had deposited no moneys in said Mechanic's Bank, except said two sums of $ 17,000 and $ 10,000, above mentioned.

"On February 8, 1877, said defendant purchased of the State Savings Association fifteen shares of its capital stock, of the par value of $ 50 per share, at the total price of $ 1,515, and on said day paid to it said price out of said moneys so deposited by him in said Mechanic's Bank, by giving to him a check in its favor with his own name, and drawn on said bank; which check said bank paid on February 9, 1877. Said defendant Leete in buying said stock took from said savings association a certificate of the ownership of it in his own name only, and has ever since held said certificate unassigned to the plaintiff. Said certificate bears date February 8, 1877, is numbered 983, and certifies that James M. Leete is entitled to fifteen shares of the capital stock of the State Savings Association, transferable only on the books thereof, in conformity with the articles and by-laws of said corporation, and upon return of said certificate. Before the beginning of this suit, and in the years 1883, 1885, 1887 and 1888, there had been declared upon said stock nine dividends of $ 60 each, amounting together to $ 540, which had not been at any time paid to plaintiff or to defendant Leete, and since the beginning of the suit two other dividends of $ 60 each, one of May 31, 1889, and the other on November 30, 1889, have been declared thereon, which are also unpaid. Said dividends so unpaid, together with interest computed upon those declared before the beginning of the suit from the time it was brought, and upon those declared since it was brought from the times they were severally declared, amount now to $ 720.65. And said shares are now of the value of $ 2,525.

"Plaintiff at no time gave defendant Leete any authority in writing to dispose for his own use or benefit of any of the moneys so paid to him by said executor, on account of her share in her father's estate, after March 25, 1875, nor in any way assented in writing to his reducing any of them to his possession.

"Respecting the averment in the petition that the purchase of stock alleged therein was made for account of plaintiff, I do not find that the evidence, outside of such conclusions as may be drawn from the facts above found, is sufficient to sustain it.

"If from those facts it can be concluded that the moneys with which said stock was bought were plaintiff's separate property, and were at the time of its purchase in said defendant's hands as her agent or trustee, then it will follow that the purchase was made for her account. But if from them the conclusion must be drawn that they were his moneys and not hers, then it cannot be found that the purchase was made for her account by him as her agent or trustee, unless there be other evidence of his agency or trusteeship for her in that behalf; and there was no such other evidence. Said defendant himself testified on her behalf that he bought the stock for her account, but there was no evidence that she ever requested him or in any way made him her agent to so buy it for her. If the moneys with which he bought it were his, then his buying it therewith for her account, without her request, was nothing more in effect than a purchase with an intent to make to her a gift of it, or of the money paid for it. A purchase for her account in that sense, in order to avail to establish a trust in her favor in the stock, ought, it seems to me, to be proved by clear and convincing evidence, not only of the intent existing at the time of the purchase, but also of the intent being carried out through a delivery of the gift, or some act equivalent thereto, or through some express declaration of a trust, made before the beginning of the litigation, and this proof was not made.

"I, therefore, do not here find as a fact that the said purchase of stock was made for account of plaintiff, but for the determination of the issue made as to the averment that it was so made, as well as of the other issues, confine myself to the above found facts, and the conclusions to be drawn therefrom."

Upon these bases of facts, the referee made and reported certain conclusions of law to the effect that the plaintiff was not entitled to recover, and recommended that her petition be dismissed. Thereupon the plaintiff filed numerous exceptions, which the trial court sustained, as to conclusions of law, but sustained and confirmed the report of the referee as to findings of facts, and thereupon entered a decree as prayed by plaintiff, and the defendant bank, failing in its motion for a new trial, brought this cause here on appeal.

Reversed and remanded.

John G. Chandler and George R. Lockwood for appellant.

(1) The Act of March 25, 1875 (Revised Statutes, 1879, sec. 3296), if applicable to the legacy of plaintiff under the will of her father, he having died, and she having married before the act, would be in conflict with article 2, section 15 of the constitution, forbidding retrospective legislation, and void. Ex parte Bethurum, 66 Mo. 545; State ex rel. v. Greer, 78 Mo. 188; State ex rel. v. Railroad, 9 Mo.App. 532; S. C., 79 Mo. 420; Linley v. Ins. Co., 8 Mo.App. 363; St. Louis v. Clemens, 52 Mo. 133; Ins. Co. v. Flynn, 38 Mo. 483; Cooley on Constitutional Limitations, 362; Sedgwick on Statutory & Constitutional Law, pp. 188, 202. (2) The Act of March 25, 1875, was not intended to take away the right of a husband, theretofore married, to reduce to his possession choses in action previously accruing to his wife. The act cannot be construed as retrospective unless no other construction is possible. State ex rel. v. Hays, 52 Mo. 578; State ex rel. v. Auditor, 41 Mo. 25; State ex rel. v. Greer, 78 Mo. 188; State ex rel. v....

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