Lindeman's Estate v. Herbert, 34050

CourtUnited States State Supreme Court of Mississippi
Writing for the CourtMcGehee, J.
Citation188 Miss. 842,193 So. 790
PartiesLINDEMAN'S ESTATE et al. v. HERBERT et al
Docket Number34050
Decision Date19 February 1940

193 So. 790

188 Miss. 842

LINDEMAN'S ESTATE et al.
v.
HERBERT et al

No. 34050

Supreme Court of Mississippi, Division B

February 19, 1940


Suggestion Of Error Overruled April 1, 1940.

APPEAL from the chancery court of Hinds county HON. V. J. STRICKER, Chancellor.

Proceeding by Ernest Herbert and others against the estate of Mrs. Elizabeth Lindeman, deceased, W. B. Fontaine, executor, and others, involving validity of an alleged gift inter vivos. From an adverse decree, defendants appeal. Affirmed.

Affirmed.

May & Byrd, Green & Green, and W. B. Fontaine, all of Jackson, for appellants.

Does the uncontradicted proof establish a completed inter vivos gift of the property involved by the testatrix? The answer to this question will dispose of this appeal, as indicated by the following quotation from the decree appealed from: "The controlling question is, has it been shown that a gift was made." If a gift was made, the chancellor's decree must be reversed and decree rendered for appellants.

In Falconer v. Holland, 5 S. & M. 689, in the concluding syllabus it is stated: "It is the policy of the law, in this state, to construe all possession of property to be under the ownership of the party possessing; and where a controversy arises, between creditors of the possessor and the alleged owner, as to whether the possession is under a gift or a loan, and the evidence is conflicting, and there is no positive documentary evidence of title in the claimant, the presumptions of law operate to regard the possession as under a gift, with all their force."

Carradine v. Carradine, 58 Miss. 286; Timberlake v. Shippers Compress Co., 72 Miss. 323; Scherck v. Montgomery, 81 Miss. 426; Jackson Opera House Co. v. Cox, 192 So. 293; Harmon v. McFarlane, 135 Miss. 284; McClellan v. McCauley, 158 Miss. 456; Jones v. Jones, 162 Miss. 501; Gidden v. Gidden, 176 Miss. 98; Howell v. Ott, 182 Miss. 252; Ford v. Byrd, 183 Miss. 846.

The general rule is stated in 12 R. C. L., Section 19, page 942, as follows: "A certificate of stock, like other classes of property, may be the subject of a gift, but in order to effect a gift there must be delivery and intent to make a gift. In the majority of cases wherein the question has arisen it has been held that the delivery of a certificate of stock without formal indorsement or assignment, or without registering it in the name of the donee, is sufficient to constitute a valid equitable gift if the intent of the doner at the time is forthwith to pass title to the donee, though no legal title passes for want of such formalities. The delivery of the instrument is a symbolical delivery of the property."

Hecht v. Boston Wharf Co., 220 Mass. 480, 108 N.E. 65, L. R. A., 1915D, 733; In re Estate of Connell, Deceased, 282 Pa. 555, 128 A. 503, 38. A. L. R. 1362; In re Estate of Chapple, Deceased, 332 Pa. St. 168, 2 A.2d 719, 121 A. L. R. 422; 28 C. J. 658, 659, 672, 674, 675, 682.

The reservation of interest in nowise impaired the validity of the gift. When the certificates passed to Mr. Mosal, the personal property (the subject of the gift) was in his possession, and the law presumes the validity of the gift, the donor having surrendered all dominion or command over the property.

It is respectfully submitted that under the overwhelming and uncontradicted proof contained in this record, and under the uniform holding of the courts generally, a valid gift from Mrs. Lindeman to Mr. Mosal was completed and every condition fulfilled when the only dividend accruing after the transfer of the stock during the lifetime of the testatrix was paid into her estate, as is admittedly shown.

To hold otherwise would be to deny the statement of the testatrix, repeatedly made by her, that "I do not own any stock in the Mississippi Foundry and Machine Company. I have given it to Julius."

It would further deny the express desire to reward her faithful and devoted nephew for the many years of his valuable services, and would force the same consideration for others not standing in such relation.

The right to give property exists as an inherent right of the owner.

Longmire v. Mars, 124 Miss. 77, 86 So. 753; Burnett v. Smith, 93 Miss. 566, 47 So. 117; Baldridge v. Stribling, 101 Miss. 666, 57 So. 658; 2 Lawrence on Equity Jurisprudence, Sec. 949; Gillis v. Smith, 114 Miss. 665, 75 So. 451; In re Estate of Llewellyn, 296 Penn. 74, 145 A. 810, 66 A. L. R. 222; 28 C. J. 625, 658, 670; In re Chapple, 332 Pa. St. 168, 2 A.2d 719, 121 A. L. R. 422, and note, p. 426; Ratterman v. Lodge, 13 F.2d 805, 807; In re King, 100 N.Y.S. 1090; Compton v. Carr, 59 P. 31; Fant v. Fant, 173 Miss. 472, 162 So. 159; St. Louis, etc., R. Co. v. Nichols, 161 Miss. 795, 138 So. 364; Cunningham v. State, 56 Miss. 269, 31 Am. Rep. 360; Hitt v. Terry, 92 Miss. 671, 46 So. 829; Batiste v. State, 165 Miss. 161, 147 So. 318; Secs. 381-383, Code of 1930; Jacks v. Bridewell, 51 Miss. 881; Waller v. Shannon, 53 Miss. 500; Saffold v. Horne, 72 Miss. 470, 18 So. 433; Kyle v. Rhodes, 71 Miss. 487, 15 So. 40; Shackelford v. Brown, 72 Miss. 380; 1 A. L. R. 48, 77, 105, 106; Murray v. Johnson, 1 Head. 35; Bellows v. Stone, 18 N.H. 465; Brown v. Mortgage Co., 86 Miss. 388, 398; 21 C. J. 561; Am. File Co. v. Garrett, 110 U.S. 228, 28 L.Ed. 149; 10 R. C. L. 545, sec. 328; Lenox et al. v. Prout, 3 Wheat. 520, 4 L.Ed. 449, 451; Development Co. v. Silva, 125 U.S. 247, 31 L.Ed. 678; Petrie v. Wright, 6 S. & M. 647; Ralston v. Rurpin, 32 L.Ed. 747; Sobraines v. Sobraines, 31 P. 910; Cresswell v. Cresswell, 164 Miss. 871, 144 So. 42; 18 C. J. 424, 503; Thornton, Gifts and Advancements, p. 451, sec. 456; Zimmerman v. Frushour (Md.), 69 A. 796, 16 L. R. A. (N. S.) 1087; 2 Pomeroy on Equitable Jurisprudence, p. 1389, par. 959, note 1; Hunter v. Atkins, 3 Myl. & K. 113; Hesse v. Hemberger (Tenn.), 39 S.W. 1063; 70 C. J. 793; Moore v. Railroad Co., 59 Miss. 243; Dunlap v. Richardson, 63 Miss. 449; McClellan v. McCauley, 158 Miss. 456, 130 So. 147; Wherry v. Latimer, 103 Miss. 531; Gholson v. Peters, 176 So. 607; Barnett v. Barnett, 155 Miss. 447; Scally v. Wardlaw, 123 Miss. 857, 86. So. 625, 627; Moore v. Brooks, 84 Miss. 238, 123 Miss. 301; Gillis v. Smith, 114 Miss. 665, 75 So. 451; Alcorn v. Alcorn, 194 F. 275; Security Mutual Life Ins. Co. v. Brunson, 176 Miss. 893, 170 So. 824; Jones v. Jones, 162 Miss. 501, 139 So. 873; Howell v. Ott (Miss.), 180 So. 60; Ham v. Ham, 110 So. 583, 146 Miss. 161; Woodson v. Reynolds, 76 P.2d 41; Bourn v. Bourn, 163 Miss. 71, 140 So. 518; Brooks v. Brooks, 145 Miss. 845, 111 So. 376; Watkins v. Martin, 147 So. 652, 167 Miss. 343; Wall v. Wall, 177 Miss. 743, 171 So. 676; Ford v. Byrd, 184 So. 443, 183 Miss. 846.

If the gift was initially invalid, then it was ratified.

Falconer v. Holland, 5 S. & M. 689, 698; Fatheree v. Fletcher, 51 Miss. 271; Pomeroy's Equity Jurisprudence (4 Ed.), Sec. 964, p. 2089; 28 C. J. 44; Pritchard v. Martin, 1 S. & M. Ch. 126; 9 Am. Jur. 389, Sec. 46; Farrand Co. v. Houston, 110 Miss. 40, 69 So. 997; 2 C. J. S. 1078; 2 Am. Jur. 181, sec. 227; Meyer v. Morgan, 51 Miss. 25.

The gift if initially invalid, was validated by acquiesence.

W. B. Fontaine was competent to give Mrs. Lindeman independent advice.

Willoughby v. Pope, 101 Miss. 808; 7 C. J. S. 826; 5 Am. Jur. 297; Todd v. Rose, 108 Kans. 64, 193 P. 894, 16 A. L. R. 425; Restatement Law of Agency, sec. 389 et seq.; Post v. Hagen, 71 N. J. 234, 65 A. 1026, 124 Am. St. Rep. 997.

Green & Green, of Jackson, for appellants.

Mrs. Elizabeth Lindeman made a valid gift of 109.09 shares of stock of Mississippi Foundry & Machine Company, herein called "Company" to Julius Mosal, and in not so holding, the chancellor erred, because:

Appellees not having waived answer under oath, appellant's sworn answer imposed upon the appellees a burden of proof, which burden of proof appellees have not seriously assumed to meet.

70 C. J. 793; Moore v. R. R. Co., 59 Miss. 243; Dunlap v. Richardson, 63 Miss. 449; Fant v. Fant, 173 Miss. 472, 162 So. 159.

Possession of personal property by donee prima facie evidence of gift.

Security Mutual Life Ins. Co. v. Brunson, 176 Miss. 893, 170 So. 824, 827; Falconer v. Holland, 5 S. & M. 689, 698; Fatheree v. Fletcher, 31 Miss. 271.

Cancellation is an extraordinary remedy and may not be granted unless the facts are proved by clear and convincing evidence.

2 Lawrence, Equity Jurisprudence, Sec. 949; Gillis v. Smith, 114 Miss. 665, 75 So. 451.

Appellees having stood by until death removed Julius Mosal, may not herein profit from that delay.

Soper v. Cisco (N. J.), 95 A. 1016-1020; 19 Am. Jur. 355, sec. 511.

As to ratification of the gift, see:

Metropolitan Life Ins. Co. v. Perrin, 183 So. 919; Clayton v. Clark, 74 Miss. 499, 21 So. 565; Cratin v. Cratin, 178 Miss. 881, 174 So. 256.

Fraud and wrongdoing are never presumed and herein not even suggested.

Willoughby v. Pope, 58 So. 705, 101 Miss. 808; Metropolitan Life Ins. Co. v. Hall, 118 So. 826, 152 Miss. 413; 7 Miss. Digest, Title "Fraud", Key No. 58; 28 C. J. 658.

Robertson & Robertson, of Jackson, for appellees.

There was no gift of the 109.09 shares of stock to J. A. Mosal.

28 C. J. 625, 674; McDaniel v. Bank of Pontotoc, 111 So. 459; McClellan v. McCauley, 130 So. 145, 158 Miss. 456; Yates' Estate v. Ala.-Miss. Conference Assn. of Seventh-Day Adventists, Inc., 176 So. 534, 179 Miss. 642; Ford v. Byrd, 184 So. 443, 183 Miss. 846; Fant v. Fant, 173 Miss. 472, 162 So. 159; Sec. 383, Code of 1930; Falconer v. Holland, 5 S. & M. 689; Carradine v. Carradine, 58 Miss. 286; Timberlake v. Shippers' Compress Co., 72 Miss. 323, 16 So. 530; Gidden v. Gidden, 176 Miss. 98; McWillie v. Van Vacter, 35 Miss. 428, 72 Am. Dec. 127; Howell v....

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17 practice notes
  • Dorsey v. Murphy, 33942
    • United States
    • United States State Supreme Court of Mississippi
    • March 18, 1940
    ...v. Strong, 183 Miss. 805, 184 So. 432; Newsom v. Federal Land Bank, 184 Miss. 318, 185 So. 595; and Lindeman's Estate v. Herbert (Miss.), 193 So. 790. Furthermore, the United States Supreme Court and this Court have upheld the constitutionality of Chapter 251 in so far as it applies to adul......
  • Greer v. Hampton, No. 45908
    • United States
    • United States State Supreme Court of Mississippi
    • October 19, 1970
    ...defense. See also Stewart v. First National Bank & Trust Company of Vicksburg, 192 Miss. 355, 5 So.2d 683; Lindeman's Estate v. Herbert, 188 Miss. 842, 193 So. 790; Raley v. Shirley, 228 Miss. 631, 89 So.2d 636. (238 Miss. at 180, 117 So.2d at See also Stepson v. Brand, 213 Miss. 826, 58 So......
  • McElveen v. McElveen, No. 40813
    • United States
    • United States State Supreme Court of Mississippi
    • June 9, 1958
    ...Deeds Secs. 193, 58 [26A C.J.S. Deeds Sec. 193]; Watkins v. Martin, 1933, 167 Miss. 343, 147 So. 652; Lindeman's Estate v. Herbert, 1940, 188 Miss. 842, 193 So. 790; Ham v. Ham, 1926, 146 Miss. 161, 110 So. 583; Bourn v. Bourn, 1932, 163 Miss. 71, 140 So. 518; Griffith, Miss. Chancery Pract......
  • Weston v. Lawler's Estate, No. 52933
    • United States
    • United States State Supreme Court of Mississippi
    • November 18, 1981
    ...was heard on bill and answer. The controversy here involved matters testamentary and of administration. In Lindeman's Estate v. Herbert, 188 Miss. 842, 193 So. 790 (1940), the Court Hence, even if Section 383 of the Code of 1930 (Section 11-5-33 Miss. Code 1972) had any application, the ans......
  • Request a trial to view additional results
17 cases
  • Dorsey v. Murphy, 33942
    • United States
    • United States State Supreme Court of Mississippi
    • March 18, 1940
    ...v. Strong, 183 Miss. 805, 184 So. 432; Newsom v. Federal Land Bank, 184 Miss. 318, 185 So. 595; and Lindeman's Estate v. Herbert (Miss.), 193 So. 790. Furthermore, the United States Supreme Court and this Court have upheld the constitutionality of Chapter 251 in so far as it applies to adul......
  • Greer v. Hampton, No. 45908
    • United States
    • United States State Supreme Court of Mississippi
    • October 19, 1970
    ...defense. See also Stewart v. First National Bank & Trust Company of Vicksburg, 192 Miss. 355, 5 So.2d 683; Lindeman's Estate v. Herbert, 188 Miss. 842, 193 So. 790; Raley v. Shirley, 228 Miss. 631, 89 So.2d 636. (238 Miss. at 180, 117 So.2d at See also Stepson v. Brand, 213 Miss. 826, 58 So......
  • McElveen v. McElveen, No. 40813
    • United States
    • United States State Supreme Court of Mississippi
    • June 9, 1958
    ...Deeds Secs. 193, 58 [26A C.J.S. Deeds Sec. 193]; Watkins v. Martin, 1933, 167 Miss. 343, 147 So. 652; Lindeman's Estate v. Herbert, 1940, 188 Miss. 842, 193 So. 790; Ham v. Ham, 1926, 146 Miss. 161, 110 So. 583; Bourn v. Bourn, 1932, 163 Miss. 71, 140 So. 518; Griffith, Miss. Chancery Pract......
  • Weston v. Lawler's Estate, No. 52933
    • United States
    • United States State Supreme Court of Mississippi
    • November 18, 1981
    ...was heard on bill and answer. The controversy here involved matters testamentary and of administration. In Lindeman's Estate v. Herbert, 188 Miss. 842, 193 So. 790 (1940), the Court Hence, even if Section 383 of the Code of 1930 (Section 11-5-33 Miss. Code 1972) had any application, the ans......
  • Request a trial to view additional results

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