Evins v. Cawthon

• Decision Date: 13 February 1902
• Citation: Evins v. Cawthon, 132 Ala. 184, 31 So. 441 (Ala. 1902)
• Parties: EVINS ET AL. v. CAWTHON.
• Court: Alabama Supreme Court

31 So. 441

132 Ala. 184

EVINS ET AL. v. CAWTHON.

Supreme Court of Alabama

February 13, 1902

Appeal from city court of Selma; J. W. Mabry, Judge.

Suit by Lucy C. Cawthon against Lucius S. Evins, guardian, and others.Decree for complainant.Defendants appeal.Affirmed.

De Graffenreid & Evins and Pitts & Pitts, for appellants.

L. E Jeffries and Danl.Partridge, Jr., for appellee.

DOWDELL J.

The bill, as amended, averred that the bank stock in question was part of the residuum of the estate.The will provides that the residuum shall be equally divided between the complainant and her sister, Florence Vaughan.It was the duty of the executors to make the division as directed by the will.The bill shows that all of the debts of the estate had been paid and the special legacies mentioned in the will had been discharged.The number of shares of stock owned by the testatrix amounted to 104.The executors made an equal division of the same between the complainant and her sister Florence, delivering to each 52 shares, and for which new certificates were issued by the bank in their respective names, and proper transfers duly made on the bank's books.Under this state of facts the executors were neither necessary nor proper parties, having no interest whatever in the suit.The 52 shares of stock thus held by the complainant were represented in one certificate.She had sold, or contracted to sell, and it is immaterial which, 5 of said shares to T. J. Rowell.It is plain that, in order to carry out and consummate this sale, it became necessary to the transfer of the legal title to the 5 shares to Rowell and a delivery of the same that a certificate should issue to said Rowell, and a transfer be made upon the books of the bank and this required a surrender of the certificate representing the 52 shares and an issuance by the bank of other certificates.If the complainant owned the 52 shares in question, she undoubtedly had the right to sell any number of them, and upon the surrender of the certificate to have new certificates issued to her and her vendee, and it was the duty of the bank to issue new certificates upon her demand.She made the demand, and the bank refused.This authorized her to come into equity to compel action on the part of the defendant bank.The bill prays that the bank be required to issue a new certificate to her vendee, Rowell, for the 5 shares sold him, and that a new certificate be issued to her for the remaining 47 shares.The relief, therefore, sought by the bill is affirmative, and such as only could be had in a court of equity.Cook, Stocks & S. (2d Ed.) 391;23 Am. & Eng. Enc.Law, p. 664;Cushman v. Jewelry Co.,76 N.Y. 365, 32 Am. Rep. 315.The enforcement of this right incidentally involved a construction of the will.As a general rule, the executor is the proper party to ask for a judicial construction of a will, and a mere devisee, in the absence of a trust or some special equity, may not apply for that purpose alone.Manufacturing Co. v. Hannon,93 Ala. 88, 89, 9 So. 539.In the present case the main purpose of the bill was the transfer of the stock, and the...