Leyson v. Davis
| Decision Date | 25 November 1895 |
| Citation | 42 P. 775,17 Mont. 220 |
| Parties | LEYSON v. DAVIS et al. |
| Court | Montana Supreme Court |
Appeal from district court, Silver Bow county; J. J. McHalton Judge.
Action by John H. Leyson, as administrator of the estate of A. J Davis, substituted for James A. Talbott, as special administrator, against Andrew J. Davis, Jr., and another, to recover stock of a bank. Judgment was rendered for defendants, and plaintiff appeals. Affirmed.
The appellant, as special administrator of the estate of Andrew J. Davis, deceased, sued to recover 950 shares of the capital stock of defendant bank, alleged by him to belong to the estate of said deceased, and claimed by said defendant Andrew J. Davis, Jr., under a donatio causa mortis. The material allegations of the complaint are: Appellant was and is the duly-qualified and acting administrator of said estate. That the defendant was and is a national bank duly organized and existing under the laws of the United States, and that said decedent at the time of his death was the owner of said 950 shares of the capital stock of the said defendant bank, which he had never indorsed, transferred, conveyed, or otherwise disposed of, and that said shares of stock at the time of the death of said decedant stood, and still stand, upon the books of said bank, in his name, and that each of said certificates of stock contains the following provision: "Transferable only by him or his attorney on the books of this bank, on the surrender of this certificate." That, prior to the commencement of this action, appellant presented to the officers of said bank a duly-certified copy of his letters of administration, and demanded that said stock be transferred to him, as such administrator, upon the books of said bank which was refused. That the said defendant Andrew J. Davis Jr., was and is the cashier and one of the directors of said bank, has possession of said certificates of stock, and claims some right or title thereto, or interest therein. That his claim thereto has no foundation in law or equity. That he refuses to surrender or deliver up said shares of stock although demand has been made, and that said claim and possession of said certificates of stock casts a cloud upon appellant's title as such administrator, and prevents him from obtaining a transfer of said stock upon the books of said bank. It also alleges that the entire capital stock of said bank consists of 1,000 shares, and that said bank is an established institution, with a large and increasing business. The prayer is that the claim of said defendant Andrew J. Davis, Jr., be declared void; that he be compelled to deliver up said certificates of stock; and that defendant bank be required to transfer the same upon its books, and issue new certificates therefor to this appellant as such administrator.
To this complaint the defendants made separate answers. The said defendant Andrew J. Davis, Jr., denies that said shares of stock, or any of them, or the certificates representing the same, or any thereof, were or are the property of said decedent, left by him at the time of his death; denies that said decedent was the owner of the whole or any of said stock or certificates, or that he never transferred, conveyed, or otherwise disposed of the same; and avers that said defendant is the owner and in possession of said shares of stock and the certificates thereof, and was such owner and in possession at the time of the death of said decedent. He denies that his claim to the said shares of stock and the certificates thereof is without merit or foundation in law or equity, or that his claim to said stock, or possession of said certificates, casts any cloud upon appellant's title, or that he ever had or has any title thereto. He admits that he is, and for several years last past has been, cashier of said defendant bank, but denies that he now is, or has been at any time since the death of said decedent, a director thereof. The answer, for affirmative matter, substantially avers that said defendant Andrew J. Davis, Jr., was a nephew of said decedent; was cashier of said bank for several years before decedent's death, and for some time before said death he had managed and attended to all the business of said bank; that in the latter part of the month of December, 1889, said decedent was, and had been for some months, seriously and dangerously ill, and suffering from the disease and ailment of which he afterwards died; that he was then about 70 years of age, and preparing to travel to the Pacific coast for his health; that on the 27th or 28th day of December, 1889, at Butte City, in the county of Silver Bow and state of Montana, said decedent, being seriously and dangerously ill, and suffering from the disease and ailment of which he afterwards died, but being of sound and disposing mind, and in view and apprehension and expectation of his death, gave to said defendant as a gift the shares of stock and certificates thereof described in the complaint, and at the same time delivered said certificates of stock to defendant as a gift, and that defendant then and there received and accepted the same, and that thereafter, on the 11th day of March, 1890, said decedent died of said disease and ailment of which he was suffering at the time he made said gift and the delivery of said stock and certificates thereof to defendant, and he has ever since said gift and delivery held in his possession, claimed as his own, said shares of stock and the certificates thereof, and now so holds and claims the same, and is entitled to have said stock transferred upon the books of defendant bank, but that said bank and the directors refused, and still refuse, to permit said transfer to be made until the rights of said parties to said stock and shares are determined by the court. The prayer is that said defendant Andrew J. Davis, Jr., be adjudged the owner of said stock and certificates thereof; that said appellant, as such administrator, and said estate, have no right or interest therein; and that said defendant bank be requested to make the proper transfers upon its books.
The separate answer of defendant bank, in substance, says that it has no interest in the controversy; that it has heretofore refuses, and now refuses, to make any transfers of said stock upon its books, although requested by appellant and said Andrew J. Davis, Jr., to do so; and that it is ready to make such transfers, or whatever else the court may order it to do in the premises.
To the separate answer of the said defendant Andrew J. Davis, Jr., appellant filed his replication, which is substantially as follows: He denies the serious or dangerous illness of the said decedent, or that he died from any disease or ailment of which he was suffering at the time of the alleged gift, or in December, 1889, or that on account thereof the decedent was preparing to travel to the Pacific coast for his health; denies that on the 27th or 28th day of December, 1889, at Butte City, Mont., or at any other time or place, said decedent ever made the gift of said shares of stock, or certificates thereof, to said defendant Andrew J. Davis, Jr., or that he ever accepted or received the same, or held or retained possession thereof under any such gift, or that said decedent was of sound and disposing mind at the time of the alleged making of the same, or that he died on account of the disease or ailment of which he was suffering at the time of the alleged making thereof; and avers that the facts set forth in his complaint are true, and asks judgment according to the prayer of the same.
The case was tried to the court sitting without a jury. Upon the trial the following facts were adduced:
A. J Davis, designated by counsel and witnesses throughout this case as Judge Davis, a resident of Butte, in this state, and for many years prior to his death president of the First National Bank of that city, died March 11, 1890, leaving an estate, exclusive of 950 shares of the capital stock of said bank, now involved in this controversy, and other valuable assets, appraised in value at $2,489, 393. By accumulated profits and enhanced value during the 12 or 15 years of the bank's existence, for nearly all of which time the deceased actively and personally controlled the bank's affairs, the value of this stock when this action was begun was admitted to be $950,000. In the latter part of the year 1889 Judge Davis was in some what feeble health, and close to 70 years old. He had not been in perfect health for some time, and had on divers occasions told plaintiff herein, who was a close and old friend, that he was too old to recover from his ailment. It appeared, too, that he had been for some time trying to straighten up his affairs and fix up everything in the bank. In November of that year he joined Judge Hiram Knowles and Hon. W. W. Dixon in a trip to Tacoma and Victoria. While away he was very nervous, worrying over money affairs, was quite feeble and ill much of the time, suffering from insomnia and pain, and often took medicine. After one particularly bad night of suffering, Judge Davis wanted to return to Butte at once. So about December 1st the party came home, having been gone scarcely three weeks. Judge Davis' health declined. He was no better a day or two after his return than before he went to Puget Sound. The insomnia continued, and the habit of taking medicine every day or two was kept up. But his mind was perfectly clear, although he seems not to have resumed any activity in business generally, except to adjust some important and unfinished transactions, extending over seven or eight years, with this plaintiff, Talbott. The nature of this business was an accounting in mining matters in which Talbott and Judge Davis were jointly interested. It...
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