Davis v. Wachter

• Decision Date: 10 March 1932
• Docket Number: 6 Div. 24.
• Citation: 140 So. 361,224 Ala. 306
• Parties: DAVIS v. WACHTER.
• Court: Alabama Supreme Court

140 So. 361

224 Ala. 306

DAVIS v. WACHTER.

6 Div. 24.

Supreme Court of Alabama

March 10, 1932

Appeal from Circuit Court, Jefferson County; Gardner Goodwyn, Judge.

Action to recover stock certificates by Lincoln Davis, as executor of the will of James H. Davis, deceased, against Emma Wachter. From a judgment for defendant, plaintiff appeals.

Affirmed.

Huey Welch & Stone, of Bessemer, for appellant.

Ross Bumgardner, Ross & Ross, of Bessemer, for appellee.

FOSTER J.

The rights of the parties to the stock certificates sued for depend upon whether their owner, prior to his death perfected a gift of them to defendant. Defendant claims under such a gift, and plaintiff is the personal representative of deceased.

Decedent was sick, and defendant was his sister, and had been living with him several months. He left a will under which the stock would go to his brother, who was appointed executor, and he, as such, is the plaintiff. The salient features of the evidence which appellee, the defendant, insists show a gift to her are as follows: A neighbor testified that, one day about a month before his death, she and another neighbor, now dead, went over to carry him some soup. Respecting that occurrence the record shows her testimony as follows:

"Q. Did he say anything to her about the stock, and if so, what was it? A. Why he handed her a letter and told her to take it to Rudolph, and he would fix the stock for her.

"Q. Just tell everything that he said when he came in there, Mrs. Ford. A. Well, now, he came in and handed her these books while Mrs. Eastis and I were there, and also handed her some papers and letter and asked her to take those to Rudolph, that they were the stock book and the account book, and some stock that he wanted Rudolph to change.

"Q. Was anything said about stock there, and if so, what was it? A. Well, he just told her there was stock there, and the letter, and to take it to Rudolph and he would fix it for her, that he wanted her to have the stock."

"The letter referred to in Mrs. Ford's testimony was as follows:

"'Brighton, Alabama. Oct. 21, 1927.

"'Dear Mr. Rudolph: I am suffering unspeakable torture, hence cannot write and explain myself or what I wish to say to you very coherently, however, will do my best as briefly as possible.

"'I am sending you my stock books, and want that you should have transferred to my sister, Mrs. Emma Wachter, all my shares that I hold in both the Davis-Edwards Land Company, as well as all my shares in the Brighton Cemetery Company, Inc. All of these shares have been, I believe, properly endorsed."'

She was relating a transaction between deceased and defendant. Mr. Rudolph, mentioned in the testimony, was a lawyer and attorney for deceased.

A lady in his office testified that defendant brought the papers to his office and they remained there apparently unopened until after the death of Mr. Rudolph two (to three) years afterwards. She then went through all his papers, found these, and turned them over to his partner who later gave them to defendant. Nothing was apparently ever done, as directed in the letter to Rudolph.

The principles of law are well understood, but we will repeat some of them in order the better to determine whether the evidence presented a jury question. The ownership of corporate stock is usually, and was on this occasion, evidenced by certificates duly executed by the corporation. Their ownership and assignment may all be effective as between the parties without certificates and their transfer. Randle v. Winona Coal Co., 206 Ala. 254, 89 So. 790, 19 A. L. R. 118; Hall & Farley v. Alabama T. & I. Co., 173 Ala. 398, 414, 56 So. 235; Frenkel v. Hudson, 82 Ala. 158, 2 So. 758, 60 Am. Rep. 736; 14 Corpus Juris, 481.

There may be a complete transfer of ownership of stock in a corporation, as between the parties, when its owner intends then and there to make and effect such transfer, and then and there delivers, though without written transfer, the certificates of stock to such transferee as a completed gift or sale as the case may be. McGowin v. Dickson, 182 Ala. 161, 62 So. 685; Thompson v. Hudgins, 116 Ala. 93 (3), 22 So. 632.

It is true that to effectuate a gift of personal property the delivery of it must take such form as the nature of the property will allow. Jones v. Weakley, 99 Ala. 441, 12 So. 420, 19 L. R. A. 700, 42 Am. St. Rep. 84. But we think that does not mean that, when the delivery is pursuant to some established rule sufficient to that end, it is not complete because the donor might have done more. To illustrate: When the savings passbook is thus delivered, it is not necessary that he should have also given a check for the amount of the account and sent it with the passbook to the bank and secured the cash and handed that to the donee, though such procedure might have been available. Wheeler v. Glasgow, 97 Ala. 700, 11 So. 758.

But there must be a clear surrender of the right and of the dominion in contradistinction to a promise or an intention to surrender. There must be no...