Moore v. Baker

• Decision Date: 04 March 1892
• Docket Number: 554
• Citation: 30 N.E. 629,4 Ind.App. 115
• Parties: MOORE, EXECUTOR, v. BAKER
• Court: Indiana Appellate Court

30 N.E. 629

4 Ind.App. 115

MOORE, EXECUTOR, v. BAKER

No. 554

Court of Appeals of Indiana

March 4, 1892

From the Hamilton Circuit Court.

Judgment affirmed.

T. J Kane, T. P. Davis and M. Garrigus, for appellant.

J. C Blacklidge, W. E. Blacklidge, B. C. Moon, R. R. Stephenson and W. R. Fertig, for appellee.

OPINION

CRUMPACKER, J.

On the 26th day of November, 1878, James A. Crowley, assigned and transferred to Susan Crowley, his wife, twenty shares of stock of the face value of one hundred dollars each, in the Howard National Bank of Kokomo. The certificate was taken up by the bank and another issued to Susan Crowley, and thus the transfer was effected on the bank records. On the same day said James gave his wife a warranty deed for lot sixty-nine in the original plat of the town of Kokomo. On the 28th day of that month, said James made his will, by the terms of which he devised and bequeathed considerable property to his said wife, among which was the lot he had so conveyed to her and "the two thousand dollars ($ 2,000) of stock in the Howard National Bank of the city of Kokomo," to be transferred to her, she to have the proceeds and dividends of such stock during her life, and at her death, it was bequeathed absolutely to Lotta Mitchell, now Lotta Baker, the appellee. Said testator died on the 11th day of January, 1879, and his will was duly admitted to probate. The widow elected to take under the provisions of the will, and the estate was administered accordingly. On the 31st day of December, 1884, she sold and transferred, absolutely, said bank stock to one Nathan Pickett for $ 2,200. She died testate in the latter part of the year 1888 in Howard county, and John E. Moore, the appellant, was appointed executor of her will. The appellee filed a claim against the executor for the conversion of the stock by the testatrix. The cause was taken to the Hamilton Circuit Court on change of venue, where it was tried by a jury and resulted in a verdict in favor of appellee for $ 2,708.33, upon which judgment was rendered. From such judgment the executor appeals. It was shown conclusively that the testatrix elected to take under the will of James A. Crowley, and that the bank stock mentioned in the will was the same stock transferred by said James to the testatrix on the 26th day of November, 1878; also, that the testatrix sold the stock and converted the proceeds to her own use. Upon these facts the court directed the jury to return a verdict in favor of the appellee, to which appellant excepted.

Where the evidence clearly establishes the right of the plaintiff to recover without contradiction, and no defense is proven against such right, it is proper for the court to direct a verdict for the plaintiff, but not otherwise. Hazzard v. Citizens State Bank, 72 Ind 130; Beckner v. Riverside, etc., Co., 65 Ind. 468. It is very earnestly insisted on behalf of appellant that the transfer of the stock to the testatrix on the 26th day of November, 1878, was a valid gift, and conferred upon her an absolute and indefeasible title thereto and that James A. Crowley had no right to afterwards dispose of it by will. This may be conceded, but when the testatrix elected to avail herself of the benefits of her husband's will, she was thereby estopped to deny his right to dispose of the bank stock, though the title was in her. The doctrine of election is of equitable origin, and is...