Bolles v. Toledo Trust Co.
| Decision Date | 12 November 1936 |
| Docket Number | 25895. |
| Citation | 4 N.E.2d 917,132 Ohio St. 21 |
| Parties | BOLLES v. TOLEDO TRUST CO. et al. |
| Court | Ohio Supreme Court |
Appeal from Court of Appeals, Lucas County.
Syllabus by the Court .
1. The essentials of a valid gift inter vivos are (1) an intention on the part of the donor to transfer the title and right of possession of the particular property to the donee then and there, and (2) in pursuance of such intention, a delivery by the donor to the donee of the subject-matter of the gift to the extent practicable or possible, considering its nature with relinquishment of ownership, dominion, and control over it.
2. To support such a gift, clear and convincing evidence is required.
3. As between donor and donee, certificates of corporate stock and choses in action evidenced by writing generally may be the subject of gifts without assignment or indorsement, but to make effective gifts of such objects, carrying rights to all they represent, there must be the present intention to give plus delivery.
4. Transfer of certificates of stock on the books of a corporation is not requisite to a valid, completed gift of such certificates as between the donor and donee.
5. The provisions of the Uniform Stock Transfer Act (sections 8673-1 to 8673-23, General Code), to the effect that title to certificates shall pass as of the time of the registration of the transfer, having been inserted for the protection of the corporation, do not alter the above rule.
6. To sustain a gift, evidence of the alleged declarations of the donor on the subject is admissible, but such declarations, to establish the essential fact of delivery, must include the statement of delivery, or facts from which actual delivery may reasonably be inferred.
George A. Bolles, of Toledo, Ohio, died testate on August 8, 1933. During his lifetime he had been the owner of a considerable estate. His executor, the Toledo Trust Company, laid claim to and took possession of certain securities, consisting of certificates of corporate stock, promissory notes secured by mortgages on real estate, and a registered certificate of the deposit of bonds, standing in his name, all of the appraised value of approximately $216,215, which were located in a safety deposit box in the Toledo Trust Company. These securities were included as assets of the estate of George A. Bolles in the executor's inventory and appraisement filed in the probate court of Lucas county.
Clara C. Bolles, the widow, filed exceptions to such inclusion on the ground that the designated securities had been given to her by her husband during his lifetime and were, therefore, her individual property.
The probate court overruled the exceptions. An appeal was taken to the court of common pleas, where amended exceptions were filed and the matter heard de novo. That court sustained the exceptions and rendered judgment in favor of the widow. The Court of Appeals affirmed such judgment, and the case finds lodgment in this court by reason of the allowance of the motion to require the Court of Appeals to certify its record.
Appellants here are the Toledo Trust Company, as executor, and Barbara Ruth Bolles, a minor, by Gustavus Ohlinger, guardian ad litem.
A more complete statement of facts is embodied in the opinion.
Smith, Beckwith, Ohlinger & Froehlich, of Toledo, for appellants.
Welles, Kelsey & Cobourn and Harley A. Watkins, all of Toledo, for appellee.
Opposing counsel agree that the important question in this controversy is whether there was a valid and completed gift inter vivos of the designated securities from George A. Bolles to Clara C. Bolles, and have made their arguments accordingly.
It appears from the record that George A. Bolles and Clara C Bolles were married in the summer of 1920. She was the widow of Harrison W. Blevins and had two minor children, Robert and Carolyn Blevins, who were legally adopted by Mr. Bolles in the fall of 1920. In August of 1921 Mr. and Mrs. Bolles became the parents of a daughter who was named Barbara Ruth Bolles, and this completed the family.
Mr. and Mrs. Bolles lived together in a seemingly harmonious relationship until his death. Her former husband, Harrison W. Blevins, had been the owner of one-half of the capital stock of the Blevins Realty Company, Inc., which came into her possession and control after his death. In 1921 Mr. Bolles acquired the remaining half of this stock by purchase. Sufficient stock was transferred to other individuals to constitute a legal board of directors.
During the year 1927, by authority of a resolution of the board of directors of the Blevins Realty Company, a safety deposit box was rented, in the name of the company, in the Ohio Trust Company of Toledo, to which both Mr. and Mrs. Bolles had access, possessing separate keys.
Later on, in 1931, a safety deposit box was rented under the same conditions in the Toledo Trust Company, being the box in which we are presently interested. In it were kept securities Mr. Bolles had purchased with his own funds. When the box was opened after his death such securities were found in a folder, on the outside of which was inscribed the name or initials of George A. Bolles. They all stood in his name, were unassigned and unindorsed, and bore dates of issuance from May 7, 1929, to December 27, 1932, excepting the certificates of stock of the Blevins Realty Company which had been acquired in June of 1921. In another and separate folder in the same box were other securities, indisputably the property of Mrs. Bolles or of the Harrison W. Blevins estate. Some of these were represented by certificates of stock which Mr. Bolles had bought for his wife and which had been issued in her name.
According to the records of the Toledo Trust Company, Mr. Bolles visited the safety deposit box described on some 48 or 49 occasions between the time of its rental in December of 1931 and July 28, 1933. According to the same records Mrs. Bolles visited the box some three times between the date of its rental and Mr. Bolles' death. No direct evidence was produced that they were ever there together, and it would seem certain that neither Mr. nor Mrs. Bolles made use of any other safety deposit box.
Mr. Bolles kept a book account of his investments, and the receipt of dividends and interest from the securities mentioned was included therein. He collected such returns and deposited them to his individual account in the Toledo Trust Company. The record is silent as to whether he listed them in his income tax returns to the federal government, but Mrs. Bolles did not in hers, covering the calendar years of 1932 and 1933.
So far as the record discloses, Mrs. Bolles had the securities in her hands but twice during the lifetime of George A. Bolles. The first time was in November of 1932 when she went to the box alone and made a list of its contents, denoting some of the securities ‘ good’ and others ‘ doubtful.’ The other time was in July of 1933 when she and her daughter, Carolyn, went to the box at the direction of Mr. Bolles to look for some guardianship papers relating to Carolyn.
William Bolles, a brother of George A. Bolles, was indebted to the Toledo Trust Company on a loan of money. Additional collateral was demanded and George A. Bolles furnished the same from the securities in the safety deposit box referred to, accepting a receipt from the bank reading as follows:
‘ The Toledo Trust Company
‘ Toledo, Ohio, June 28, 1933.
‘ Received from George A. Bolles 600 shares Libbey Owens Ford Glass Co., common stock to be held by us as collateral to Loan of Wm. Bolles this stock to remain the property of Geo. A. Bolles and to be surrendered to him upon payment of note of Wm. Bolles. Stock represented by 6 certificates of 100 shares each numbered T.1128 to 1133 inclusive.
‘ By W. J. Pankhurst, asst. treas.’
However, in connection with this transaction, there is testimony by William Bolles that his brother desired the receipt for the stock ‘ because I took it out of Clara's box.’ And Mrs. Bolles testified, ‘ He (George A. Bolles) suggested taking 600 shares of the Libbey-Owens stock out of the box to put up as additional collateral on this loan and asked me if I thought it was all right.’ ‘ I said I wanted to help Will in any way we could.’
To sustain the fact of a gift, Mrs. Bolles places much reliance on the testimony of seven witnesses who narrated statements attributed to Mr. Bolles over the span of years from 1927 to 1932. Those statements and the persons who testified to them are as follows:
Albert P. McKee, friend and one-time office associate: ‘ He told me that he had added another block of Libbey-Owens stock and had salted it in the deposit box for Clara.’
William Bolles, brother: ‘ The substance of his talk to me there was that he gave his wife some securities and he put them in her safety deposit box.’
Sadie Crissey Foreman, friend: '
Charles J. Danberg, former employee and friend: ‘ He said, ‘ I planted that stock in that deposit box for Mrs. B.’ and he wouldn't touch that or loan me any of it.'
Mrs. Charles J. Danberg: ‘ Well, he talked about having created a trust for Barbara and the deposit box-the contents of the deposit box was Mrs. Bolles.’
Russell M. McCown, chauffeur: ‘ Mr. Bolles said, ‘ Well Clara, I am glad that is settled, it is just salted...
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