Fidelity & Columbia Trust Co. v. McCabe
| Decision Date | 25 April 1916 |
| Citation | 169 Ky. 613 |
| Parties | Fidelity & Columbia Trust Company, Executor and Trustee under the will of Effie Jackson Russell v. McCabe. |
| Court | Kentucky Court of Appeals |
Appeal from Jefferson Circuit Court (Chancery Branch, First Division).
GIBSON & CRAWFORD for appellant.
HUMPHREY, MIDDLETON & HUMPHREY for appellee.
Mrs. Sallie McCabe, the appellee, Mrs. Effie Jackson Russell, appellant's testate, and Mrs. Maude M. Cook, who were sisters, owned in equal shares all of the seventy-five thousand ($75,000.00) dollars capital stock of the Anchorage Planting Company, a Louisiana corporation, which owned and operated a large island in the Mississippi River upon which were valuable sand and gravel deposits.
In 1899 Mrs. McCabe sold or assigned as collateral security for a debt twenty-four of the twenty-five shares of said stock owned by her of the par value of twenty-four thousand ($24,000.00) dollars to August Keller.
In 1901 or 1902 August Keller assigned his interest in said stock to his brother Herman Keller, who a short time thereafter, in 1902, transferred his interest to Mrs. Effie Jackson Russell, who procured said company to issue to her in her own name a new certificate of stock, for the entire twenty-five shares owned by Mrs. McCabe, and to endorse upon the stub of the company's stock book the following: "This stock was sold by August Keller to his brother, Herman Keller, and was sold by Herman Keller to Mrs. Effie Jackson Russell."
Mrs. Russell left a will by the second clause of which she made the following disposition of said stock:
From the time said testatrix came into possession of said stock until her death, she received the dividends therefrom and made to her sister Mrs. McCabe an allowance of $100.00 per month; and, after the death of said testatrix, said allowance was continued by appellant by consent of the residuary legatee and the children of Mrs. McCabe. A written contract in reference thereto having been made in 1912 is in evidence. In 1914 appellee brought this suit to recover possession of said twenty-four shares of stock in the Anchorage Planting Company, alleging that she was the owner and entitled to possession thereof. The lower court sustained this contention and entered a judgment directing appellant to surrender possession of said stock to the appellee, from which judgment this appeal is prosecuted.
Appellant defended upon three grounds: (1) That Mrs. Russell bought the stock outright and had the right to dispose of it by her will. (2) That however she may have held it in the first instance, she and appellant had held and claimed it as her own with notice to Mrs. McCabe for more than five years prior to the institution of this suit, and that Mrs. McCabe's claim is barred by limitation. (3) That even though Mrs. Russell did not own the stock at the time of her death, as Mrs. McCabe has received and accepted benefits under said will, she is now estopped to deny disposition made of said stock by the will.
Upon the first question involved the testimony is not clear as to what title Mrs. Russell acquired in this stock at the time she obtained possession of same from Herman Keller, nor do we consider of controlling effect the fact that she procured the issuance to herself of a new certificate for said stock and had the endorsement made upon the stub of the stock book which we have quoted; but the fact that she collected the dividends upon the stock and took no evidence of indebtedness from her sister, Mrs. McCabe, for the amount she had paid for the stock, in view of her subsequent disposition thereof inclines us to believe that Mrs. Russell took and held absolute title with the intention not to profit thereby, but with the determination to hold and dispose of same for the benefit of her sister and children upon such terms as she saw fit to dictate. We must confess, however, that the testimony is not entirely in accord with that conclusion, and that some of it seems rather to support the contention of appellee; however, in view of our conclusion upon the next proposition presented, it is not necessary to a decision of this case to decide what title Mrs. Russell acquired when she came into possession of this stock, or how she held it prior to the execution of her will.
2. It seems to us that there is no reasonable doubt as to the intention of the testatrix to assert title in herself and dispose of this property as her own by her will in the clause set out above. It would be hard to conceive how language could more positively indicate absolute ownership upon the part of the testatrix and no ownership whatever in Mrs. McCabe. Her statements in reference to the stock are, "I will, devise and bequeath" the stock "bought by me" and "formerly owned by my sister Mrs. Sallie McCabe." "I paid for said stock the sum of $3,500.00 and I now will the said stock," and that she did not recognize any ownership in her sister Sallie McCabe is further made certain by the fact that she gave to her sister no interest whatever in the stock even after the payment of the $3,500.00 charged against it, except the income therefrom during her lifetime with remainder to her children. Every line and almost every word of that clause is a declaration of absolute ownership in Mrs. Russell, and a denial of any title or right thereto in Mrs. McCabe except such as Mrs. Russell desired to give. The fact that the gift is charged...
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