Livingston v. Powell

• Decision Date: 10 March 1952
• Docket Number: 3 Div. 632
• Citation: 257 Ala. 38,57 So.2d 521
• Parties: LIVINGSTON v. POWELL
• Court: Alabama Supreme Court

Page 521

57 So.2d 521

257 Ala. 38

LIVINGSTON v. POWELL

3 Div. 632.

Supreme Court of Alabama.

March 10, 1952.

Grady Reynolds and Reynolds & Reynolds, Clanton, and Thomas W. Graff, Roanoke, for appellant.

J. G. Duncan, Jr., Prattville, and Floyd H. Mooneyham and Godbold & Hobbs, Montgomery, for appellee.

FOSTER, Justice.

This is an appeal from a decree of the circuit court in equity, in a suit seeking a declaratory judgment. The bill was filed by complainant, appellant, against respondent, appellee, for the purpose of determining the ownership of certain stocks, bonds and cash which, at the time of the death of T. J. Hicks, were in a safety deposit box of the First National Bank of Montgomery. Appellant claimed the securities and money under a gift alleged to have been made to him by the deceased T. J. Hicks. The appellee, Katie Hicks Powell, was the next of kin of the deceased, his sole heir and the residuary legatee under his will and executrix of his estate. The securities consist of United States Savings Bonds, series G; one State of Alabama Harbor Improvement Bond; four Alabama Renewal Bonds, Class C; thirty-five shares of preferred stock in the Wesson Oil Company; thirty shares of preferred stock in Moore-Handley Hardware Company; thirty shares of preferred stock in Birmingham Electric Company, together with twelve $100 bills in cash.

A brief history of the situation is that there were four brothers, the deceased T. J. Hicks, J. G. Hicks, L. D. Hicks and William Hicks who was the father of Katie Hicks Powell. The appellant was a nephew of the wife of L. D. Hicks and otherwise was no relation to any of the brothers. T. J. Hicks and J. G. Hicks were never married. In 1918, when the appellant was about two and one-half years of age (his father and mother being dead), he was taken into the Hicks home by Mr. and Mrs. L. D. Hicks. T. J. Hicks and J. G. Hicks also resided in the same home. Appellant was reared in the family and was treated as one of them. They all became very much attached to him. L. D. Hicks set up a trust for his education and maintenance, not here material. After the death of L. D. Hicks and removal of his wife, the other brothers in the home, T. J. Hicks and J. G. Hicks, assumed the role of parents toward him. On November 19, 1934, J. G. Hicks rented a safety deposit box in the First National Bank of Montgomery, making the appellant co-owner or co-lessee of the box. The box was number 1036, and is sometimes referred to as box number 10. J. G. Hicks died in 1935, leaving appellant as the sole owner or lessee of this box. After the death of J. G. Hicks, appellant executed an instrument or direction to the bank on a standard form also signed by T. J. Hicks in the following words: 'I hereby designate and appoint T. J. Hicks, whose signature appears below, as I duly authorized deputy, equally with me to have access to and control over safe No. 10 rented by me in the vaults of the First National Bank of Montgomery, Alabama, and to remove the contents therefrom at will.' T. J. Hicks had another safety deposit box in the First National Bank of Montgomery, which he rented in his own name. He died August 16, 1949. There was found in said box No. 1036, after the death of Mr. Hicks, the securities and cash above mentioned. There was no endorsement on the securities or any indication in the box to show that there had been intended an assignment of the property to appellant. All of the stock and bonds were registered in the name of T. J. Hicks, and he had collected the dividends and interest, respectively, all the time as his own.

T. J. Hicks had executed a will which was probated after his death, dated December 14, 1948. The appellant had for many years been living out of the State. He had been educated and reared by the Hicks brothers. In 1946, T. J. Hicks set up a revocable trust with the First National Bank of Montgomery as trustee, in which trust he was to receive the income during his lifetime, with appellant as the sole beneficiary at his death. When created, the trust had a value of approximately $22,000. In March 1949, about five months before his death, Mr. Hicks added $5,000 to the trust, and a few days later amended this trust by changing the method of distributing the principal to appellant after his death. The records of the bank show that on March 21, 1949, the day when the $5,000 was added to the trust, Mr. Hicks entered box No. 1036, but did not enter his individual box then nor during that year. For many years before his death, he paid the rent on this box (No. 1036); whereas appellant had not visited the box for several years, as shown by the records and his testimony, and had lost the key which he had. After the death of Mr. Hicks, appellant had the bank drill the box open, at which time the securities and money were found.

The contention of appellant is that those securities placed in the box by Mr. Hicks were thereby delivered to him and intended as a gift from T. J. Hicks, with the reservation of the income for his life.

There is no direct testimony of any such purpose on the part of Mr. Hicks. Appellant was not privileged to testify with respect to any transaction had with him in respect to those matters because of the interest of the estate in the result of the suit, section 433, Title 7, Code, and there was no other witness who testified as to any such purpose on the part of Mr. Hicks in his lifetime.

The trial court ruled against appellant in respect to the securities, to which we have referred, but with him with respect to the money that was found in the box.

Appellant has assigned errors to the extent that the decree is adverse to him, and appellee has cross assigned errors as to the $1,200 in money.

There is no evidence of the exact time when such parol gift might have been made. But if it was made at all, it was after the death of J. G. Hicks in 1935, and after the appellant as co-lessee of box No. 1036 'appointed' T. J. Hicks his deputy with respect to it, for it was only then that he acquired access to said box, and after appellant and Mr. Hicks went into the box about two or more years before Hicks died, when he gave appellant $2,000, which was all there was in the box. So that, if there was any such gift intended to be made by Hicks to appellant, it was after the Uniform Stock Transfer Act of the Legislature of Alabama, as now set forth in sections 48 et seq., Title 10 of the Code of 1940, after which also the stock certificates bear date. Section 56, Title 10, Code, deals with the transfer by delivery, without endorsement, of certificates of stock of Alabama and some out of state corporations. So that, at least some of the stocks referred to, and perhaps all of them, are controlled by that Act. Under section 56, supra, when a stock certificate is attempted to be transferred by delivery, without the endorsement requisite to pass the legal title, section 48, Title 10, Code, but with the intent to transfer it, there is imposed an obligation on the part of the transferor to complete the transfer by making the necessary endorsement, and this obligation by that statute is made subject to specific performance. Section 57, Title 10, Code, deals with an attempted transfer of title to a certificate without delivery of the certificate, and provides that the same shall have effect as a promise to transfer, and that any obligation thereby imposed shall be subject to the law governing the formation and performance of contracts.

Those two statutes have been considered in the case of Johnson v. Johnson, 300 Mass. 24, 13 N.E.2d 788, as meaning that under section 56, supra, no consideration is necessary to require specific performance of the contract imposed under the circumstances there declared; but that under section 57, supra, specific performance would not be decreed without such consideration as would justify its performance upon general principles under the laws of the state. The cases of Davis v. Wachter, 224 Ala. 306, 140 So. 361; McGowin v. Dickson, 182 Ala. 161, 62 So. 685, and other such cases, were controlled in some respects by the law as it existed prior to the enactment of the Uniform Stock Transfer Act, to which we have referred.

Section 56, Title 10, Code, is the statute which affects the current transaction insofar as it relates to stock of a corporation which was organized under the laws of Alabama or of some other state whose laws are consistent with that article. Section 69, Title 10, Code.

With respect to a transfer of the registered bonds of the United States and of Alabama, which were found in the box, all of such bonds being registered in the name of T. J. Hicks alone, we know of no statute which applies. There are cases in some states which hold that the United States bonds of a similar character are not transferable inter vivos at all, except as may be done by authority of the United States. Moore's Adm'r v. Marshall, 302 Ky. 729, 196 S.W.2d 369, 168 A.L.R. 241, annotation page 251; Brown v. Vinson, 188 Tenn. 120, 216 S.W.2d 748. Some of the cases make a distinction between transfers inter vivos and those causa mortis in this connection. There are also cases to the contrary. Marshall v. Felker, 156 Fla. 476, 23 So.2d 555. For annotation of cases, see 161 A.L.R. 170. We assume for argument that such gifts may be valid as between donor and donee, when the gift is sufficiently consummated. Compare, McLeod v. Brown, 210 Ala. 491, 98 So. 470.

The controversy must be viewed in the light of principles of law well settled. Section 129, Title 47, Code, fixes the guide to be applied. It is in substance that a parol gift of personal property is inoperative until the custody, control, management and use of the property passes from the donor to donee, and is possessed by such donee or his agent. That requires a clear surrender of the right and of the dominion in contradistinction of a promise or an intention to surrender. There must be no...