Kuebler v. Kuebler, 1798

• Decision Date: 06 January 1961
• Docket Number: No. 1798,1798
• Citation: 131 So.2d 211
• Parties: Clyde KUEBLER, Appellant, v. Rudolph H. KUEBLER, Executor, Appellee.
• Court: Florida District Court of Appeals

Page 211

131 So.2d 211

Clyde KUEBLER, Appellant, v. Rudolph H. KUEBLER, Executor, Appellee.

No. 1798.

District Court of Appeal of Florida, Second District.

Jan. 6, 1961.

Rehearing Denied June 9, 1961.

J. Field Wardlaw, Wardlaw, Stewart & Van der Hulse, West Palm Beach, for appellant.

Phillips & Hathaway and E. M. Baynes, West Palm Beach, for appellee.

KELLY, CLIFTON M., Associate Judge.

Appellant Clyde Kuebler seeks reversal of a summary final decree entered on the 2d day of March, 1960, by the Circuit Court of Palm Beach County in favor of Appellee Rudolph H. Kuebler as executor of the last will and testament of Louis C. Kuebler, deceased, wherein it was decreed that 796 shares of the corporate stock of the City Loan and Savings Company of Lima, Ohio, along with a stock dividend in the amount of $955.20 belonged to the estate of Louis C. Kuebler, rather than to the appellant.

On the 3d day of September, 1956, Louis C. Kuebler, who will be hereinafter referred to as Louis, being a resident of Palm Beach County, Florida, died testate. His last will and testament was admitted to probate in the County Judge's Court of Palm Beach County, Florida, with his son, Rudolph H. Kuebler, being named executor of his estate as provided in the will. Thereafter Clyde Kuebler, who will hereinafter be referred to as appellant, filed in the County Judge's Court in connection with the said probate proceeding a pleading entitled 'Proof of Claim and Petition.' This petition alleged in substance that appellant was the owner of 796 shares of the capital stock of the City Loan and Savings Company of Lima, Ohio, having a value of $46,168.00, issued under date of February 15, 1955, in the name of 'Louis Kuebler and Clyde Kuebler as joint tenants with right of survivorship and not as tenants in common' and that the stock was being improperly withheld from him by the executor of Louis's estate along with a stock dividend declared on the stock after the death of Louis. This proof of claim and petition concluded with a prayer that the executor be required to deliver up the stock and dividend to appellant. To this claim the executor filed his written defenses denying that appellant was the owner and entitled to the possession of the stock and dividend. In addition to denying that the stock and dividend belonged to the appellant, the executor asked the Court to declare that the stock and dividend be the property of Louis's estate. This lengthy petition filed by appellant was more than a mere proof of claim as contemplated by Section 733.16 of the Florida Statutes, F.S.A., for it contained the ultimate facts upon which Clyde based his claim and contained a prayer for affirmative relief. Likewise, the defense of the executor was something more than an objection to a claim as required by the probate laws as it set forth in great detail the executor's defenses to the appellant's claim and concluded with a prayer for affirmative relief 'That the Court may grant an order to your executor declaring the stock to be the property of the estate of Louis C. Kuebler together with all dividends arising therefrom.'

Motions of the executor to dismiss and to strike the proof of claim and petition in the County Judge's Court were denied by the County Judge on March 4, 1958.

Following an elapse of several months with no further action being taken in the case, the executor filed a motion for summary judgment, a new motion to dismiss and to strike, and a demand for a jury trial; and the appellant filed a motion for summary judgment.

The County Judge, without ruling upon any of these motions, being of the opinion that his Court was without jurisdiction of the subject matter of the claim, ordered the entire proceedings transferred to the Circuit Court of Palm Beach County 'In Equity' for further proceedings without interruption under the provisions of Rule 1.39(b), Florida Rules of Civil Procedure, 30 F.S.A., along with the case file consisting of three large volumes which included all pleadings, motions, orders, depositions in discovery and otherwise, briefs of counsel, etc.

Following this transfer to the Circuit Court both parties filed more motions similar to the ones previously filed in the County Judge's Court but to no avail as the chancellor of the lower court ruled that the cause should be determined by the pleadings previously filed in the County Judge's Court which were undisposed of at the time the case was transferred as no appeal was taken from the order transferring the case to the Circuit Court and, further, no appeal was taken from the order of the County Judge which denied the executor's original motion to dismiss and strike the proof of claim and petition.

We are called upon by this appeal to determine if the Circuit Court ruled correctly in declaring that the above described stock and dividend rightfully belonged to the estate of Louis C. Kuebler.

A careful examination of the entire record on appeal, including all pleadings, depositions on file and admissions, shows that the stock certificate was dated February 15, 1955, and was issued in the name of 'Louis Kuebler and Clyde Kuebler as joint tenants with right of survivorship and not as tenants in common.' The stock certificate and dividend came into the hands of the executor as hereinafter explained.

During his lifetime Louis owned in his sole name 2125 shares of the capital stock of The City Loan and Savings Company, Lima, Ohio. The stock was represented by several different stock certificates, and from time to time Louis hypothecated all of them to First National Bank, Lake Worth, Florida. The Lake Worth Bank had actual, physical, possession of the certificates. On February 15th, 1955, Louis caused 796 shares to be re-issued to Louis Kuebler and Clyde Kuebler jointly, as previously stated. Appellant was the nephew of Louis. Apparently, appellant had no knowledge of the transfer until June 22, 1955, when The Lake Worth Bank wrote Clyde as follows:

'Your uncle, Mr. Louis Kuebler, has instructed this bank to transfer certain shares of stock in The City Loan and Savings of Wapakoneta, Ohio into the joint ownership of yourself and Mr. Kuebler.

'The above stock is pledged for certain loans at this bank. It will be necessary for you to sign the enclosed stock assignments and return so this transaction may be completed.

'A self addressed envelope is enclosed for your convenience. If we may be of any further assistance please do not hesitate to call on us.'

Appellant signed the stock assignment in blank and returned it to the bank.

On July 12, 1955, Louis caused the further number of 1329 shares to be re-issued to Louis and appellant jointly, in the same fashion as the other 796 shares. All of the stock remained in the possession of The Lake Worth Bank as security for loans to Louis, and The Lake Worth Bank continued to hold appellant's blank stock assignment.

During October, 1955, Louis caused The Lake Worth Bank to forward the stock certificates for 1329 shares to the Savings Company with the request that new certificates be issued to 'Louis Kuebler and Rudolph Kuebler, as joint tenants with the right of survivorship and not as tenants in common.' This was done and the certificates returned to The Lake Worth Bank. From aught appearing in the record appellant was never notified of the transfer. Apparently, the Savings Bank acted solely upon the strength of the stock assignment signed in blank by appellant. He never questioned or protested the making of the transfer.

Under date of January 5, 1956, Louis wrote appellant:

'Sign your name under my. I just got some dividend stock from the City Loan. So I want to get your name on it. Return it as soon as you can. I am feeling better getting along although today we are having cold weather down to 40~. See you next summer.'

Apparently, a stock assignment was enclosed. Appellant signed it without hesitation or objection and returned it to Louis.

On February 6, 1956, Louis again wrote appellant:

'Please sign this stock paper on the back in the presence of some one as wittness. When I get it back I will sign it. This is my dividend stock and they made an error. I have 796 shares on your name. It reads like this. In 2 weeks I will send you a card for you to sign a Joint Stockholders Contract.'

This 'stock paper' likewise was signed by appellant without objection and returned to Louis.

At one time Louis executed a will, later revoked, wherein appellant, along with Rudolph, was named residuary beneficiary of Louis's estate. Rudolph was Louis's son. After the transfer of the 1329 shares of stock to appellant in July, 1955, Louis executed a new will revoking all former wills and making no mention of appellant. Louis's Last Will and Testament, subsequently probated, was executed in August, 1956, and likewise made no mention of appellant. Upon Louis's death, The Lake Worth Bank called upon the Executor to pay Louis's debt. This was done and all of the stock certificates, along with appellant's blank stock assignment, were delivered to the executor. Appellant now claims the 796 shares of stock.

The record does not disclose how many stock assignments appellant executed in blank, but at least one remained in the hands of The Lake Worth Bank at the time of Louis's death.

It appears that Louis intended that appellant should have the 796 shares of stock upon the former's death, but requirements for its testamentary disposition were not met. Unless an interest vested in him during the donor's lifetime, appellant cannot prevail here.

It is well settled that to effectively pass title by gift there must be a surrender of dominion over the res, coupled with the intent then and there to pass title. In other words, there must be an immediate vesting of some interest in the donee, complete and irrevocable. If the donor withholds divestiture it is not a legal gift. A delivery which does not confer the present right to reduce the res into...