Buresh v. First Nat. Bank of Or.

• Decision Date: 11 May 1972
• Citation: 496 P.2d 913,262 Or. 104,94 Or.Adv.Sh. 1473
• Parties: Lorraine M. BURESH, Respondent, and Cross-Appellant, v. FIRST NATIONAL BANK OF OREGON, a national banking association, Appellant.
• Court: Oregon Supreme Court

Page 913

496 P.2d 913

262 Or. 104

Lorraine M. BURESH, Respondent, and Cross-Appellant, v. FIRST NATIONAL BANK OF OREGON, a national banking association, Appellant.

Supreme Court of Oregon, In Banc.

Argued and Submitted Sept. 13, 1971.

Decided May 11, 1972.

Harold D. Gillis, Eugene, argued the cause for appellant. On the briefs were Butler, Husk & Gleaves, Eugene.

Sidney E. Thwing, Eugene, argued the cause for respondent and cross-appellant. With him on the briefs were Thwing, Atherly & Butler and Randall E. Thwing, Eugene.

O'CONNELL, Chief Justice.

This is an action of replevin to recover 31 certificates of stock bearing the names of William A. Seman and Lorraine M. Buresh as joint tenants with right of survivorship and to recover damages resulting from withholding the stock. The stock certificates had been deposited in one of defendant's safe deposit boxes. Defendant was the executor of Mr. Seman's Oregon estate and the certificates were released to it in that capacity. Defendant appeals from a judgment for plaintiff. The court also entered judgment for damages in favor of plaintiff, but stayed execution on the judgment until defendant's right to indemnity as an executor could be determined in the probate department of the circuit court. Plaintiff cross-appeals from the order staying the execution of the judgment.

Plaintiff is the daughter of William A. Seman and Anna Seman. Plaintiff's parents were divorced when she was a young child. Her father left Chicago when plaintiff was eight years of age, and he had no further contact with plaintiff until June 1956 when, after locating her in the Chicago area through the Salvation Army Missing Persons Bureau, he wrote her a letter in which he stated, in part:

'I have a heart condition and my health is not too good, but am able to travel and take care of myself, personally I do not think it is too serious, and might live quite a number of years and again not. I live by one of the largest lakes in California and am alone, have property consisting of a two bedroom home and another smaller house on an adjoining lot, also other personal property, which you will inherit.

'It will be necessary for us to get together, at some time, so that I can assign this property and other assets in your name and mine, so that there will be no complications in the event of my death, and you would immediately step in and take over. I would not want the estate and assets to go through a public administrators hands or through a lawyer. Generally there is not much left for the heirs.'

In August 1956, plaintiff and her husband were guests of Mr. Seman in his home in California. During their visit, Mr. Seman took plaintiff and her husband to the offices of his stockbroker, Wesley P. Craig, of the Dean Witter Company at Santa Rosa, California where, after introducing his daughter to Mr. Craig, he made arrangements to charge his securities account from William A. Seman, a single account, to William A. Seman and Lorraine M. Buresh, a joint account, and instructed Mr. Craig that all future stock purchases were to be made in the names of William A. Seman and Lorraine M. Buresh as joint tenants. Mr. Seman also made arrangements to transfer his existing stocks from his name to himself and Lorraine M. Buresh as joint tenants.

As instructed, Mr. Craig effected the charge of Mr. Seman's securities account from a single account to a joint account in the names of William A. Seman and Lorraine M. Buresh, and all stock purchases made by Mr. Craig through Dean Witter Company thereafter for Mr. Seman were made in the names of William A. Seman and Lorraine M. Buresh as joint tenants with right of survivorship. Also, in accordance with Mr. Seman's instructions, all stock certificates purchased by Mr. Craig were mailed to Mr. Seman as were all dividends received form the stock.

William A. Seman died in Woodland, California, on November 6, 1968. On December 31, when his safety deposit box at the Eugene Main Branch of the First National Bank of Oregon was inventoried, a representative of the State Treasurer's office found 31 certificates of stock representing shares in at least eight different corporations and mutual funds bearing the names of William A. Seman and Lorraine M. Buresh as joint tenants.

In addition to the certificates of stock, there were among other things eight blank 'Assignment Separate From Certificate' forms clipped together and separate from the securities, all signed by Lorraine M. Buresh. None of the forms were completed.

The plaintiff made demand upon the defendant to deliver to her all certificates of stock bearing the names of William A. Seman and Lorraine M. Buresh as joint tenants with right of survivorship. The bank refused and this action was instituted.

At all times concerned, Willaim A. Seman was a resident and inhabitant of California and so far as is known all of the securities involved were purchased in California. Both parties accept the proposition that the case is controlled by California law.

The trial court held that a valid inter vivos gift was effected, vesting in plaintiff an interest as joint tenant which ripened into complete ownership upon the death of her father.

Defendant contends that a gift was not effected for lack of delivery.

We affirm. The evidence clearly establishes Mr. Seman's intent to make a gift of the shares of stock to plaintiff. The only question is the sufficiency of the evidence to prove the requirement of delivery. Applying the law of California, we find that this element was also satisfied. Although we have found no California case directly in point, there are several which we think are dispositive.

In Lynch v. Lynch, 124 Cal.App. 454, 12 P.2d 741 (1932), the defendant decided to give certain stock in two corporations to some of his heirs, including the plaintiff. However, he wished to retain control of the corporations and a part of the dividends that might thereafter be declared. In consequence, he had stock certificates issued in the names of the various heirs, including plaintiff, the same being noted in the stock transfer books of the corporations. Defendant informed the plaintiff of the transfer and, to keep control of the corporations, obtained from the plaintiff a power of attorney to vote the stock.

Plaintiff was not shown the stock certificates and at all times thereafter they were in the defendant's possession. Defendant held possession of the stock for ten years, at the end of which time plaintiff revoked the power of attorney and brought an action to recover the stock...