Benton v. Smith
| Decision Date | 24 May 1943 |
| Docket Number | No. 20290.,20290. |
| Citation | 171 S.W.2d 767 |
| Parties | BENTON v. SMITH et al. |
| Court | Missouri Court of Appeals |
Appeal from Circuit Court, Jackson County; Allen C. Southern, Judge.
Suit by Carlton R. Benton, as administrator of the estate of Mathilde K. West, deceased, against Wilton A. Smith and others to set aside and to cancel a transfer of corporate stock. From a decree for defendants, plaintiff appeals.
Affirmed.
Ira B. Burns, of Kansas City, and Melvin L. Gibbard, of Chicago, Ill., for appellant.
Clay C. Rogers and Mosman, Rogers, Bell & Conrad, all of Kansas City, for respondents.
This is a suit in equity instituted by the administrator of the estate of Mathilde K. West, deceased, against Wilton A. Smith, Arlione W. Smith, his wife, and Alpine Oil & Gas Corporation, to set aside and cancel a transfer of 250 shares of the stock of that corporation from the said Mathilde K. West, during her lifetime, to herself and the defendant, Wilton A. Smith, as joint tenants. There was a decree in favor of defendants, and plaintiff has appealed.
The facts show that the Alpine Oil & Gas Corporation was organized in December 1931, under the laws of the State of Kansas; that it was formed apparently by the defendant, Wilton A. Smith and one H. E. West, the husband of Mathilde K. West, each owning 500 shares of stock in the corporation. The corporation was engaged in buying and holding leases on oil wells and operating such wells. H. E. West died in November 1940, leaving surviving him his wife, Mathilde K. West, a daughter, one Della Decker, by a former marriage, and a grandson, Will Eyssen, a child of a deceased daughter by a former marriage.
The facts further show that Mr. West had been ill for about two years prior to his death and that he had taken no part in the activities of the corporation; that he was unable to look after any business affairs and that his condition grew worse until March 1940 when he required the services of a nurse. H. E. West was president of the corporation and Smith was vice-president and treasurer. Both received the same salary, which was a substantial one. Mr. West's salary was never decreased.
Mr. West married Mathilde K. West in 1933. She and her husband lived in Independence, Kansas, which was the location of the office of the oil corporation. No child was born of this marriage. After Mr. West died Mrs. West continued to maintain her home at Independence until the time of her death, on February 5, 1941. Mr. and Mrs. Smith and Mr. and Mrs. West were intimate friends and the two families visited each other frequently. Mr. and Mrs. Smith lived in Kansas City.
Mrs. West became secretary of the corporation in 1936. She received no salary before her husband died, after which she drew a salary of $100 per month. Mr. West had drawn a will disposing of his property but he destroyed his will and, about August 1940, attempted to dispose of his property, during his lifetime, to the same beneficiaries as in his will. So, on August 17, 1940 he surrendered his 500 shares in the corporation and had issued, in lieu thereof, 250 shares to himself and his wife "as joint tenants with the fight of survivorship and not as tenants in common". The other 250 shares, which he owned, were issued to himself and his daughter, Mrs. Decker, "as joint tenants with the right of survivorship and not as tenants in common". Mrs. West was secretary of the corporation at the time and she knew that the certificates were issued and she signed them as secretary. Mr. West disposed of all of his property except the money he had in the bank. He wanted his grandson, Eyssen, to have $5000, in cash, which was on deposit in a bank in Kansas City, of which Mr. Smith was the vice-president and Smith, with the consent of Mrs. West, paid Eyssen the said sum of money.
During his lifetime Mr. West repeatedly told Mrs. West that he wanted Mr. Smith to be protected and given control of the corporation. She told her husband that she would have the stock (250) shares, which she would own absolutely at his death, transferred to Mr. Smith and herself, with the right of survivorship and that, if anything happened to her, Mr. Smith would be protected in the control of the corporation. After Mr. West's death Mrs. West said to several disinterested persons, who testified as witnesses, that she was going to transfer the stock to Mr. Smith and herself "jointly with the right of survivorship." After the death of Mr. West she repeatedly told Mr. Smith, who was then the president of the corporation, that she wanted the certificate cancelled and reissued to herself and him with the right of survivorship.
Because of Mr. West's illness Mrs. West had been very active in the corporation's affairs for two years prior to his death. She kept all of the books and looked after the payroll of the corporation and would go out over the leases and the corporation property. She had a thorough knowledge of the business affairs of the corporation and consulted with the other officers with respect to its affairs. Mrs. West was also the owner of considerable property of her own after the death of her husband, which consisted of oil and gas leases, residential property, a farm and cash in banks. Prior to her marriage she had been a nurse in Mercy Hospital in Chicago. After Mr. West's death she remained in Independence until shortly before Christmas 1940, when she took a trip to Illinois, where she apparently visited relatives. She returned from this trip about January 1st, 1941. Her husband's nurse stayed with her as a companion after his death. She testified that Mrs. West was not ill; that she complained of a goitre and of being worn out from the long sickness and death of her husband; that Mrs. West decided to go to Mercy Hospital in Chicago to have the goitre removed. Mrs. West had no other ailment.
The evidence further shows that on the 4th day of January 1941, in response to a telephone call from Mrs. West, Mr. and Mrs. Smith went to Independence and stayed there until the next day; that, upon their arrival at the home of Mrs. West, she told Mr. Smith that she wished to transfer her stock in the corporation to him, whereupon, Mr. Smith suggested that she think the matter "over tonight and sleep on it — tomorrow we will discuss it"; that on the next day, when Smith again went to her home the nurse was there and Mrs. West went upstairs to the vault, got the stock certificate and took it down to Mr. Smith and said: "I want you to have this certificate". At the same time she handed Smith the corporation stock book and the corporation seal. She told him to have the certificate made out in their joint names with the right of survivorship. The certificate, which she handed to Smith, was duly and properly endorsed and assigned in blank by her.
Mr. Smith returned to Kansas City with the stock book and seal and had a new certificate made out in accordance with Mrs. West's directions. Mrs. West made arrangements to go to Chicago on January 9th, and requested Mr. and Mrs. Smith to go with her, saying, she would not go unless they went along. She paid for the tickets to Chicago. Mr. and Mrs. Smith met her at the train in Kansas City and accompanied her to Chicago. On the trip she asked Smith if he had prepared the papers; if he had made out the new certificate. He told her that he had. She said, "let's sign them and get it over with". He told her "no", that they would wait until they got to Chicago. When they arrived in Chicago the Smiths accompanied her to Mercy Hospital where they left her on the evening of January 9th. She asked them to come back the next morning and execute the papers. On the morning of the 10th they went to the hospital. Mrs. West was sitting up in bed but she did not appear to be acutely ill. When he went into the room Smith had various other papers which Mrs. West had asked him to prepare, which consisted of some assignments of oil leases, etc. He handed her the certificate for 250 shares of stock made out to her and himself with the right of survivorship and asked if that was the way she wanted it. She replied in the affirmative. She then signed it as secretary of the corporation and handed it back to him. There was nothing about the transaction that was secretive or undisclosed, Mrs. West knowing exactly what she wanted and how she wanted it done. Mr. Smith testified that he accepted the certificate for the purpose and the effect expressed therein.
The evidence shows that, before and at the time of the transfer of the certificate, Mrs. West was a person of strong will, determination and sound mind. She was a good business woman.
After she delivered the certificate of stock to him Mr. Smith suggested to Mrs. West that she give him a letter expressing, in writing, the directions she had given him about her property, and they collaborated in drawing a letter, which was taken and typewritten by one of the nurses in the hospital. In reference to this letter Mr. Smith testified: .
The letter reads as follows:
To continue reading
Request your trial
-
Wahl v. Wahl
...it was not necessary to establish gift to show delivery, since the life tenant was entitled to possession. In the case of Benton v. Smith et al., 171 S.W. 2d 767, the donor's corporate stock was reissued to donor and donee with right of survivorship, with a reservation of dividends in the d......
-
Wahl v. Wahl
...it was not necessary to establish gift to show delivery, since the life tenant was entitled to possession. In the case of Benton v. Smith et al., 171 S.W. 2d 767, donor's corporate stock was reissued to donor and donee with right of survivorship, with a reservation of dividends in the donor......
-
Kansas City Life Ins. Co. v. Rainey
... ... In re Koss's Estate, 150 A. 360; Stevenson ... v. Earl, 65 N.J.Eq. 721, 55 A. 1091; Sever v ... Ransom, 120 N.E. 639; Smith v. Simons, 61 P.2d ... 584; Sec. 1014, R.S. 1939; Cartall v. St. Louis Union Trust ... Co., 348 Mo. 372, 153 S.W.2d 370 ... R ... Mutual Benefit ... Life Ins. Co. v. Ellis, 125 F.2d 127; 138 A.L.R. 1484; ... Restatement of the Law, Contracts, sec. 133; Benton v ... Smith, 171 S.W.2d 767; Geel's Estate, 143 S.W.2d ... 327; Lafayette-South Side Bank v. Siefert, 18 S.W.2d ... 572; Warren v. United States, ... ...
-
Clevidence v. Mercantile Home Bank & Trust Co.
... ... v. Meier, 124 S.W.2d 594; Ball v. Mercantile Trust ... Co., 220 Mo.App. 1165, 297 S.W. 415; Mississippi ... Valley Trust Co. v. Smith, 320 Mo. 989, 9 S.W.2d 58; ... Ambruster v. Ambruster, 326 Mo. 51, 31 S.W.2d 28; ... Schnur v. Dunker, 38 S.W.2d 282. (3) The cases ... property of Mr. Forster upon his wife's death. Bunker v ... Fidelity Nat. Bank & Trust Co., supra; Benton v. Smith ... (Mo. App.), 171 S.W.2d 767; Yates v. Richmond Trust ... Co. (Mo. App.), 220 S.W. 692 ... The ... situation is ... ...