State ex rel. Moore v. Van Tassell Real Estate & Live Stock Company

• Decision Date: 25 May 1938
• Docket Number: 2037
• Parties: STATE EX REL. MOORE v. VAN TASSELL REAL ESTATE & LIVE STOCK COMPANY, ET AL
• Court: Wyoming Supreme Court

79 P.2d 476

53 Wyo. 89

STATE EX REL. MOORE v. VAN TASSELL REAL ESTATE & LIVE STOCK COMPANY, ET AL

No. 2037

Supreme Court of Wyoming

May 25, 1938

Rehearing denied August 2, 1938.

APPEAL from the District Court, Laramie County; SAM M. THOMPSON Judge.

Proceeding by the State of Wyoming, on the relation of Granville Moore for a peremptory writ of mandamus requiring the Van Tassell Real Estate & Live Stock Company and another to permit relator and his authorized representatives to examine and inspect defendant corporation's books and records. From a judgment of dismissal, relator appeals.

Affirmed.

For the appellant, there was a brief and oral argument by John C. Pickett and Carleton A. Lathrop, both of Cheyenne.

The only question involved in this appeal is whether it was a complete gift from R. S. Van Tassell to Granville Moore. The elements of a complete gift have been defined by this court in Hecht v. Shaffer, 15 Wyo. 34; Begovich v. Kruljac, 38 Wyo. 365. The stock was property that might pass by gift. King's Estate v. King, 49 Wyo. 453. There is a distinction between gifts inter vivos and gifts causa mortis, the latter being contingent upon the death of the donor. The only difference in the two is that gifts inter vivos are irrevocable and gifts causa mortis are not effective unless the donor dies. We believe the evidence is sufficient to sustain a gift from Van Tassell to Moore. 28 C. J. 639, 642, 12 R. C. L. 932, 935; Irvine Innes v. Potter, 153 N.W. 604, 3 A. L. R. 896; Grisson v. Stenberger, 10 F.2d 764; Smith v. Commissioner of Int. Rev., 59 F.2d 533; Union Trust Company v. United States, 54 F.2d 152; First National Bank v. Commissioner of Internal Revenue, 63 F.2d 685; Garrett v. Keister, 56 F.2d 909; Bingham v. White, 31 F.2d 575; Stevenson v. Hunter, 293 P. 500; Weaver v. Welsh, 191 A. 3. A transfer of stock on the books of the corporation is sufficient delivery to constitute a valid gift. Stewart v. Collins, 36 Wyo. 210; Phillips v. Plastridge, 99 A. L. R. 1074. The gift was accepted by the donee. In re Stockham, (Ia.) 186 N.W. 650; Taylor v. Sanford, (Texas) 193 S.W. 661; In re Donohoe, 115 A. 878; McKinnon v. Bank, 6 A. L. R. 111. Draper was a trustee for donee. Begovich v. Kruljac, supra; Innes v. Potter, supra. The donor had performed every act required of him by law to make a valid gift of the stock, and nothing remained for him to do to complete the gift.

For the respondents, there was a brief and oral argument by J. A. Greenwood of Cheyenne.

Errors assigned, but not discussed in brief of appellant will be treated on appeal as waived. Dern v. Hiteshew, 44 Wyo. 190; Wood v. Stevenson, 30 Wyo. 171; Ins. Company v. Lloyd, 273 P. 681. An action in mandamus is not available to determine title to property. State v. Kay, 145 P. 277; Jackson v. Hopkins, 76 A. 6; State v. District Court, 292 P. 897, 38 C. J. 582; Nampa v. Welsh, 15 P.2d 617; Coon v. Biscailuz, 36 P.2d 430; State v. Ashley, 42 P.2d 225; Bank v. Gray, 24 Wyo. 13; Day v. Smith, 46 Wyo. 515; State ex rel. Cross v. Board of Land Commissioners, 58 P.2d 423. A reviewing court will not disturb a judgment of the trial court if same is supported by substantial evidence. Sheep Co. v. Diamond Live Stock Co., 43 Wyo. 15; Nat. Bank v. Richardson, 45 Wyo. 306; King v. Richards-Cunningham Company, 46 Wyo. 355; Christensen v. McCann, 41 Wyo. 101. A corporation can not issue capital stock in excess of the amount for which it was incorporated or in excess of an increased amount of capital stock and a certificate representing overissue of stock is void under all circumstances. 11 Fletcher Cyc. Corp, 241; State v. Hardister, 237 P. 75; First Ave. Land Co. v. Parker, 86 N.W. 604; Scovill, et al. v. Thayer, 105 U.S. 143; 14 C. J. 403; New York R. Co. v. Schuyler, 34 N.Y. 30. To constitute a valid gift of property requires: (1) The presence of a clear intent on the part of the donor to give; (2) the existence of the subject matter of the gift in a form capable of actual delivery; (3) The complete surrender by the donor of both possession and control of the subject matter of the gift; (4) The existence of a donee capable of accepting the subject of the gift and the acceptance thereof. 28 C. J. 620; 12 R. C. L. 923; Dern v. Hitshew, 44 Wyo. 190; Begovich v. Kruljac, 38 Wyo. 365; Hecht v. Shaffer, 15 Wyo. 34; Basket v. Hassell, 107 U.S. 602; Lynch v. Lynch, 12 P.2d 742; Riley v. Board, 222 N.W. 861; Mahan v. Plank, 289 F. 722. A gift causa mortis to be a valid disposition of the subject matter of the gift must be made in view of impending or expected death from a sickness or impending peril. Coffin v. Hyde, 205 P. 736; Varley v. Sims, 111 N.W. 269; Basket v. Hassell, 107 U.S. 602; 28 C. J. 684; 12 R. C. L. 962. A gift inter vivos can only be executed in the present, during the lifetime of donor, accomplished by a complete divesting of control over the thing given independent of any contingency of death. King's Estate v. King, 49 Wyo. 453; Mahan v. Plank, 289 F. 722; Varley v. Sims, 111 N.W. 269; Snyder v. Snyder, 92 N.W. 353; Mathews v. Hoagland, 21 A. 1054; Knight v. Tripp, 54 P. 267; Sands v. Dildine, 54 P.2d 171.

BLUME, Chief Justice. RINER and KIMBALL, JJ., concur.

OPINION

BLUME, Chief Justice.

The plaintiff in this case will be hereinafter referred to as the relator. He filed a petition in this case for a peremptory writ of mandamus to permit him and his authorized representatives to examine and inspect the books and records of the defendant corporation. He alleged that the defendant is a corporation organized under the laws of the State of Wyoming; that he is the owner of one hundred shares of the common stock of defendant corporation; that he desires access to the various records of the corporation for the purpose of determining the value of his stock, finding out whether or not any dividends have been paid by the corporation, enabling him to learn and legally assert his right as a stockholder, and ascertaining the validity of certain transfers made by the defendant corporation; that certain transfers have recently been made to Maude B. Van Tassell; that these transfers were without consideration and in violation of the rights of relator; that on April 25, 1935, a demand was made upon the secretary of the defendant corporation for permission to inspect the books and records for the purposes above mentioned, but that such permission was refused. An alternative writ was issued, and in answer thereto the defendant corporation appeared and answered. It admitted its corporate existence, and that defendant Albert Cronland is the secretary thereof; it denied that the relator is the owner of any shares of common stock of the defendant company, and that any stock had been issued to him; it alleged that relator does not desire to examine the records and books of the defendant corporation for the purpose alleged, but solely and alone for the purpose of determining the question of his ownership of the stock, which said ownership has heretofore been denied, to the knowledge of the relator. A reply was filed in the case, denying the affirmative allegations of the answer. On December 4, 1935, Maude B. Van Tassell filed her petition for leave to intervene in the cause, alleging that relator is not the owner of any stock in the defendant corporation, but that she is the owner of the certificate claimed by him; that she is a necessary party to the determination of the question of ownership of the stock. At the same time, she filed her answer, more fully setting out the facts as to the ownership of the stock. On December 12, 1936, the court heard counsel as to the right to intervene. Counsel for relator apparently objected, and the court thereupon denied her the right to do so. The cause came on for trial between the relator and the defendants. Relator introduced in evidence Certificate No. 8 of the defendant corporation for one hundred shares of stock, signed by the president and secretary of the company, and with the corporate seal thereto attached. It appears that this stock was issued on January 16, 1926; that at that time the corporation had a capital stock of one hundred thousand dollars, divided into one thousand shares of one hundred dollars each; that R. S. Van Tassell, deceased, was the president of the company and Claude R. Draper the secretary. R. S. Van Tassell held 998 shares of the stock; Claude Draper and another holding one share each, to qualify them to act as directors of the company. It seems that prior to the date of the issuance of the certificate of stock above mentioned there had been some talk of increasing the capital stock of the company. But that was never carried out. Claude Draper testified that R. S. Van Tassell instructed him to issue the certificate in question; that this was done; that Mr. Van Tassell requested him to hold it until, as he expressed it, "something happens to me," and then to send it to the relator, to be held by the latter for the benefit of a stepdaughter of the deceased; that he kept the certificate in his own private box. Relator testified that deceased told him of this arrangement. It does not appear clearly as to whether or not the certificate for 998 shares held by the deceased was cancelled and a new certificate for 888 shares issued. R. S. Van Tassell died on April 12, 1931, leaving a last will and testament which was dated September 27, 1922, bequeathing and devising all of his property to Maude B. Van Tassell. The will was duly admitted to probate, Maude B. Van Tassell was appointed executrix, and among other property 998 shares of the capital stock of the defendant corporation were included in the inventory, and the ownership thereof was in the final decree dated October 27, 1932, vested in her. The relator did...