Morson v. Second Nat. Bank of Boston

• Decision Date: 13 September 1940
• Citation: Morson v. Second Nat. Bank of Boston, 306 Mass. 588, 29 N.E.2d 19 (Mass. 1940)
• Parties: MORSON v. SECOND NAT. BANK OF BOSTON et al.
• Court: Supreme Judicial Court of Massachusetts

306 Mass. 588

29 N.E.2d 19

MORSON

v.SECOND NAT. BANK OF BOSTON et al.

Supreme Judicial Court of Massachusetts, Suffolk.

Sept. 13, 1940.

Bill in equity by James H. Morson, administrator of the estate of Herbert B. Turner, deceased, against the Second National Bank of Boston and others to enjoin the transfer of certain stock of defendantMassachusetts Mohair Plush Company which had originally been issued to the deceased, and to recover stock certificate.From a final decree for the plaintiff, the defendants appeal.

Reversed, and final decree to be entered dismissing the bill.Appeal from Superior Court, Suffolk County; Hurley, Judge.

Argued before FIELD, C. J., and DONAHUE, LUMMUS, QUA, and RONAN, JJ.

P. A. Hendrick and A. S. Gerstein, both of Boston, for plaintiff.

B. D. Levinson and E. M. Altman, both of Boston, for defendant Copperman.

QUA, Justice.

This is a bill in equity by the administrator of the estate of Herbert B. Turner, late of Gloucester, alleging, in substance, that a certificate for one hundred and fifty shares of the stock of the defendantMassachusetts Mohair Plush Company, a Massachusetts corporation, had been originally issued to Herbert B. Turner, but had been delivered to the defendant bank as ‘transfer agent’ of the plush company by the defendantMildred Turner Copperman for transfer to her on the ground that Herbert B. Turner in his lifetime had made her a gift of the stock.The prayers are for injunctions against the transfer of the stock and for recovery of the certificate.

The judge carefully found all the material facts in detail, upon which he ruled that there had been no completed gift of the stock by Turner to Mildred Turner Copperman, and entered a decree for the plaintiff.The issue is whether the facts found show a valid gift of the stock, which should now be recognized by a transfer on the books of the corporation and the issuance of a new certificate to Mildred Turner Copperman.We think that they do.

Among the facts found are these: About September 20, 1937, while Turner and Mildred Turner Copperman were travelling together in Italy, Turner handed to Mildred Turner Copperman a sealed envelope previously marked by him ‘Property of Mildred Turner Copperman.’As he did so he said, ‘These are yours.’The certificate in his name, dated October 6, 1933, was in the envelope.He also said that he would have to sign the back of the certificate.Two days later a notary and two witnesses came to the hotel where the parties were staying.Mildred Turner Copperman produced the certificate, and ‘Turner signed his name on the back * * * and then he filled in the name of Miss Copperman and her address' and delivered the certificate to Mildred Turner Copperman, who ‘accepted it.’Turner's intention at that time was ‘to make an absolute gift to Mildred Copperman to take effect at once.’

It is provided by G.L.(Ter.Ed.)c. 155, § 27(Uniform Stock Transfer Act§ 1), that title ‘to a certificate and to the shares represented thereby shall be transferred only-(a) By delivery of the certificate endorsed either in blank or to a specified person by the person appearing by the certificate to be the owner of the shares represented thereby; or (b) By delivery of the certificate and a separate document containing a written assignment of the certificate or a power of attorney to sell, assign or transfer the same or the shares represented thereby, signed by the person appearing by the certificate to be the owner of the shares represented thereby.Such assignment or power of attorney may be either in blank or to a specified person.’Section 26(Uniform Stock Transfer Act§ 22) defines ‘certificate’ as ‘a certificate of stock in a corporation organized under the laws of this commonwealth or of another state whose laws are consistent with said sections.’Plainly that which was done in Italy would have been sufficient, if it had been done in Massachusetts, to effect a transfer of legal title to the shares.

But it is argued that the validity of the transfer is to be judged by the law of Italy, and that certain formalities required by that law for the making of gifts in general were not observed.Doubtless it is true that whether or not there is a completed gift of an ordinary tangible chattel is to be determined by the law of the situs of the chattel.American Law Inst., Restatement, Conflict of Laws§§ 256, 257, 258.Shares of stock, however, are not ordinary tangible chattels.A distinction has been taken between the shares and the certificate, regarded as a piece of paper which can be seen and felt, the former being said to be subject to the jurisdiction of the state of incorporation and the latter subject to the jurisdiction of the state in which it is located.American Law Inst., Restatement, Conflict of Laws, § 53;Beale, Conflict of Laws, §§ 53.1, 262.1.SeeKennedy v. Hodges, 215 Mass. 112, 114, 115, 116, 102 N.E. 432;Edgerly v. First National Bank of Boston, 292 Mass. 181, 183, 197 N.E. 518.The shares are part of the structure of the corporation, all of which was erected and stands by virtue of the law of the state of incorporation.The law of that state determines the nature and attributes of the shares.If by the law of that state the shares devolve upon one who obtains ownership of the certificate it may be that the law of the state of a purported transfer of the certificate will indirectly determine share ownership.Direction Der Disconto-Gesellschaft v. United States Steel Corp., 267 U.S. 22, 45 S.Ct. 207,69 L.Ed. 945;Hutchison v. Ross, 262 N.Y. 381, 390, 391, 187 N.E. 65, 89 A.L.R. 1007;American Law Inst., Restatement, Conflict of Laws, § 53, comment c. See, also, Id., §§ 103, 182, 213, 262.But at least when the state of incorporation has seen fit in creating the shares to insert in them the intrinsic attribute or qualify of being assignable in a particular...