Barker v. Edwards

• Decision Date: 07 July 1919
• Docket Number: 3261.
• Parties: BARKER v. EDWARDS.
• Court: U.S. Court of Appeals — Ninth Circuit

259 F. 484

BARKER v. EDWARDS.

No. 3261.

United States Court of Appeals, Ninth Circuit.

July 7, 1919

Freeman & Thelen, of Great Falls, Mont., for appellant.

John A Coleman, of Lewistown, Mont., and T. J. Walsh, C. B. Nolan Wm. Scallon, and Walsh, Nolan & Scallon, all of Helena Mont., for appellee.

Before GILBERT, ROSS, and HUNT, Circuit Judges.

HUNT Circuit Judge.

Jane Barker died December 23, 1912, leaving a will under which Sarah Ford Josephine Barker and J. C. E. Barker qualified as executors. There were six heirs, David L. S. Barker, Sarah Ford Josephine Barker, J. C. E. Barker, Herbert A. Barker Carter Barker, and Florence E. Edwards. By the will Sarah Ford Josephine Barker was bequeathed certain property in Great Falls, Mont., and $10,000, and the residue of the estate was to be converted into money and divided equally among the remaining five sons and daughters, share and share alike.

This suit is brought to establish that Jane Barker, the deceased, was the owner of 427,670 shares of stock in the Big Seven Mining Company, and that under her will Florence E. Edwards, appellee, and other heirs have become the owners thereof. It appears that E. J. Barker, a son of Jane, died in 1899, and Marcella, his widow and administratrix, claimed that the estate of E. J. owned the shares now involved, although they stood in the name of Jane, his mother. Certain litigation between Marcella and David, who had been administrator, resulted in an order of the state court that the shares should be delivered to Marcella as administratrix. There was no adjudication that the estate of E. J. was the owner of the stock, and no order compelling transfer upon the books of the Mining Company was made.

The contention of the plaintiff herein is that about 1903 David L. S. Barker, appellant herein, in order to protect his mother in her ownership of the stock, made an agreement with Jane Barker, his mother, that he would advance the money to buy any claim of right, title, and interest in the shares of stock held by the estate of E. J. Barker, and would hold them in trust for her until such time as she would repay moneys advanced for the purchase; that afterward David L. S. Barker caused the stock to be bought through Sarah Ford Josephine Barker, his sister, and that he holds the stock in trust under the agreement for the estate of his mother; that he refuses to turn it over or to account and asserts ownership in himself. The defendants deny that the heirs of Jane Barker have any interest in the stock, and put in issue the allegations of the complaint with respect thereto, and also challenge the jurisdiction of the court. The District Court held that David Barker was not the owner of the stock, that when the time of the existence of the Big Seven Mining Company expired, Jane Barker was the owner of the shares, and that the rights to them passed by her will. David L. S. Barker appealed.

The Big Seven Mining Company was incorporated in December, 1892, with a term of existence for 20 years from December 20, 1892. E. J. and David L. S. Barker were two of the incorporators, and E. J. Barker acquired in his own name 435,500 shares.

The evidence as to how Mrs. Barker originally acquired the shares issued to her is certain testimony given by her and by David L. S. Barker in connection with certain probate proceedings in the district court of the state of Montana, in the matter of the estate of her son, Edward J. Barker, and also certain statements made by David Barker in the present case. In these probate proceedings referred to, the substance of the statements of Jane Barker was that her son, E. J., in his lifetime, had given her the stock; and David Barker also testified therein that the stock belonged to his mother, and not to E. J., his deceased brother. The stock stood in Jane Barker's name, and, although she had signed the blank indorsements on the certificates, the shares were never transferred. She gave E. J., her son, a power of attorney, but in 1895 by letter to his mother he acknowledged her ownership. The certificates had been issued to her at various times in 1894, 1895, and 1896. We are of opinion that Jane was properly held to be the owner of the shares.

It is of importance also to note that the order of court requiring David, administrator of the estate of E. J. to deliver the shares of stock to Marcella was made in the probate proceedings, and not in an independent action to test the right of ownership of the certificates. David Barker was dissatisfied, and as administrator appealed to the Supreme Court of the state, and it was there held (In re Barker's Estate, 26 Mont. 279, 67 P. 941), that if the shares belonged to the estate or came into the hands of David Barker as administrator, the order of the probate court was proper, but that if the property did not belong to the estate, and David did not hold it as administrator, the probate court had no power to compel him to part with it; that upon settlement of accounts the court had no power to adjudicate and finally determine questions of title between the estate and third persons, as that could only be done by action in which the parties could have a trial in the ordinary way.

Jane Barker was not a party to the proceeding in the state court; it was a matter between Marcella Barker, widow of E. J. Barker as party in interest in the estate and as administratrix, and David L. S. Barker alone.

In 1903 the administratrix of the estate of E. J. Barker obtained an order of court for the sale of the estate of E. J. Barker, and pursuant to an understanding between the administratrix and Violet Barker, acting for David, Violet Barker bid for all the estate. Sale of the assets was made and confirmed, and the certificates of stock of the Big Seven Mining Company, which had been put in escrow in a bank, were delivered by the bank to Violet Barker for David. In the returns of sales made by the administratrix and in the order of confirmation the stocks sold are described as 435,500 shares of the capital stock of the Big Seven Mining Company owned by the estate of E. J. Barker, 'also, all the right, title and interest of the said estate in and to 427,670 shares of the capital stock of the Big Seven Mining Company standing on the records of said company in the name of Jane Barker,' and also certain other property not material to this controversy. Thirteen thousand dollars were paid for all the assets of the estate of which $9,000 was paid on account of the stocks, including shares of corporations other than the Big Seven Mining Company.

David Barker's contention is that in 1906 his mother gave him the 427,670 shares standing in her name by handing over the certificates with the statement that they were his. His sister, Sarah, testified that she saw her mother give her brother an envelope in which were certificates of Big Seven Stock; but on cross-examination the testimony of the sister was to the effect that she did not see the certificates, but that her mother said that the envelope which was handed over contained stock. David testified that after the purchase at the administrator's sale, his mother thought she owned the stock, and that the certificates, when given to him by his mother, were in a package or envelope to which was attached a slip of paper on which were written the words 'This stock belongs to David L. S. Barker Jane Barker October 26, 1906. ' This slip is an exhibit sent up, but the envelope to which it is now attached is not the original, appellant saying that the original to which the...