Peck v. Providence Gas Co.

• Decision Date: 24 February 1891
• Citation: 17 R.I. 275,21 A. 543
• Parties: PECK et al. v. PROVIDENCE GAS CO. et al.
• Court: Rhode Island Supreme Court

21 A. 543

17 R.I. 275

PECK et al.

v. PROVIDENCE GAS CO. et al.

Supreme Court of Rhode Island.

Feb. 24, 1891.

Bill in equity to establish title to corporate stock or for compensation. Heard on an agreed statement of facts.

Joseph C. Ely, for complainants.

Francis W. Miner and William G. Roelker, for respondent Providence Gas Company.

MATTESON, J. This is a bill in equity, brought by the complainants, who are the children of Allen O. Peck, deceased, and residuary legatees under his will, against their mother, Mary E. Peck, Benjamin W. Smith, her assignee for the benefit of creditors, and the Providence Gas Company. By it the complainants seek to compel the Providence Gas Company to reinstate them in the title to 130 shares of the capital stock of that company, or to reimburse them for its loss. The cause was heard on bill, answers, and an agreed statement of facts. The case, as it appeared upon the hearing, is as follows, viz.: Allen O. Peck died September 17, 1871, leaving a last will and testament, the residuary clause in which is as follows, to-wit: "I give, devise, and bequeath all the residue and remainder of my estate of all kinds to my children, share and share alike, to have and to hold the same to them and their respective heirs, subject, however, to the following provision for my wife, Mary Elizabeth Peck: In lieu of her dower in my said estate my said wife may use, occupy, and enjoy such parts of my estate as she may at any time elect for the residence of herself and my children, and the income of all other parts of my said estate for the use and benefit of herself and my children during her life, and until the day of her marriage; but from the day of her marriage, and for the remainder of her life, she may have only the use and income of one-half of my estate, including such part thereof as she may select for her residence, and the household furniture." The will also contained the following power, to-wit: "My executrix is authorized to sell such part of my estate as she may judge necessary or desirable for the security of the same, and to reinvest the same according to her discretion." This will was duly proved in the municipal court in Providence, and Mary E. Peck, named therein as executrix, qualified herself to act, administered the estate, and filed two accounts of her dealings with it, the latter of which was allowed by the court August 18, 1874. By this account it appeared that there were remaining in her hands as executrix on July 30, 1874, the date of the account, besides other property, 160 shares of the capital stock of the Providence Gas Company, which shares also stood at the date named on the books of that company in the name of the estate of Allen O. Peck. The gas company was not aware of the contents of the will, except in so far as it was chargeable with constructive notice from the record of it, at the dates of the transfers of its stock complained of, but were notified of the decease of the testator soon after it occurred, and that the respondent Mary E. Peck had been appointed executrix on his estate. It allowed 130 of said 160 shares to be transferred by one Henry C. Whitaker, the brother of the said Mary E. Peck, acting under a power of attorney given to him by her, as follows, to-wit: July 30, 1878, 60 shares to the National Exchange Bank; May 10, 1882, 25 shares to C. E. Lapham, cashier; September 7, 1883, 20 shares to C. F. Sampson, cashier; December 8, 1883, 25 shares to C. F. Sampson, cashier; and also issued to each of the transferees of said shares memorandum certificates of the shares transferred. All of the shares so transferred were in fact pledged to the transferees, and in January, 1885, all of them were allowed by the gas company to be retransferred to the said Mary E. Peck individually. Subsequently, from time to time, they were transferred by said Whitaker, under powers of attorney given to him by said Mary E. Peck, until at the time of his death 70 were held by one bank and 60 by another, in pledge, and have since been sold by the pledgees to satisfy the debts for which they were pledged. It was agreed that said Mary E. Peck would testify that she gave the power of attorney to said Whitaker, through being misled by him, and being ignorant of business matters; that neither she nor the estate of Allen O. Peck had any of the proceeds of the stocks pledged; that the complainants would testify that they had no knowledge of the transactions narrated until the death of Whitaker; that the gas company would testify that it had no knowledge of any imposition practiced upon said Mary E. Peck by said Whitaker, and allowed the transfers of the stock to be made with no other notice than that implied by the acts of transfer and of the...