Strout v. Burgess.

• Citation: 68 A.2d 241
• Parties: STROUT v. BURGESS.
• Decision Date: 11 August 1949
• Court: Supreme Judicial Court of Maine (US)

68 A.2d 241

STROUT

v.BURGESS.

Supreme Judicial Court of Maine.

Aug. 11, 1949.

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Bill in equity by Alfred M. Strout, administrator of the estate of Charles T. Burgess, against Charles M. Burgess to recover as assets of decedent's estate certificates of stock transferred by decedent to himself and defendant as joint tenants in consideration of defendant's promise to support transferor and pay for his burial.

The presiding justice of the Superior Court of Knox County held the transfer void as an attempted testamentary disposition not executed in accordance with statute of wills and defendant appealed.

The Supreme Judicial Court, Merrill, J., sustained the appeal and ordered bill dismissed, holding that transfer was an attempt to create a present estate and was not void and that, though it created only a tenancy in common instead of a joint tenancy with right of survivorship, deceased transferor's administrator held legal title to undivided one-half interest in stock as constructive trustee for defendant, but that equity could not order transfer of such interest to defendant in absence of cross-bill seeking affirmative relief.

Appeal from Superior Court, Knox County.

Jerome C. Burrows, Rockland, for Alfred M. Strout, Adm'r and Heirs of Charles T. Burgess.

Alfred M. Strout, Rockland, Adm'r pro se.

Frank F. Harding, Rockland, for defendant Charles M. Burgess.

Before STURGIS, C. J., and THAXTER, MURCHIE, TOMPKINS, FELLOWS, and MERRILL, JJ.

MERRILL, Justice.

This is an appeal from a decision of a single Justice of the Superior Court sitting in equity. Ths bill was filed by Alfred M. Strout, Administrator of the Estate of Charles T. Burgess, against Charles M. Burgess, a nephew of the deceased. It was brought to recover certain certificates of corporate stock contained in a safety deposit box in The Thomaston National Bank in the name of ‘Charles T. Burgess or Charles M. Burgess'. The certificates and the shares represented thereby were claimed by the plaintiff as assets of the estate of Charles T. Burgess, and by the bill he sought to recover them from the defendant, who also claimed title thereto. Each of the certificates was issued to ‘Charles T. Burgess and Charles M. Burgess as joint tenants with the right of survivorship and not as tenants in common’. Included were shares in corporations organized under the laws of some six different States, including Maine. The certificates represented some six hundred fifty shares approximating in value the sum of $13,000.00. All of the shares were originally the sole property of Charles T. Burgess.

The evidence clearly established that Charles T. Burgess, hereafter called the decedent, who at the time of his decease was eighty-nine years of age, had made his home with the defendant for almost six years next prior to his death, except for a period of three months, commencing early in January, 1944 when he was in a nursing home. Prior to making his home with the defendant the decedent had conveyed his farm to another person by a deed conditioned for his support and burial. This arrangement not being satisfactory it had been cancelled by mutual consent and the property reconveyed. Sometime in the early part of 1941, the decedent came to live with the defendant, his nephew, under an arrangement whereby it was agreed that he would live with him, on trial as it were, to see whether or not conditions would be to his satisfaction, he paying board in the meantime. If things were satisfactory to him a permanent arrangement was to be effected whereby the defendant would receive his property in return for his support and burial.

After his return from the nursing home the transfer of the shares here in question was made, and shortly afterwards the farm was conveyed to the defendant by a deed conveying full title.

We are here concerned only with the effect of the transfer of the shares in question. It is clear from the evidence, and no other conclusion can be drawn therefrom, that at the time of the alleged transfer of the shares it was agreed between the defendant and the decedent that the shares were to be transferred to him in joint tenancy with the decedent, it being understood that in this manner the decedent would be protected if the defendant should die first, and that the defendant would be protected with full title at his uncle's death.

It is also clear from all of the testimony in the case that the transfer of the shares in question and the later transfer of the farm were made to carry out the tentative arrangement entered into at the time the defendant's uncle first came to live with him, the situation evidently being to the satisfaction of the decedent, and that it was understood that the defendant would carry on in the same manner as had been previously agreed by his predecessor. The evidence clearly established that the defendant fully performed his part of the agreement, supported the decedent for the remainder of his life and paid for his burial. This was not only a technical, but a vaulable consideration for the transfer of the shares in question. No other conclusion can be reasonably reached from the testimony taken as a whole.

As above stated, we are here concerned only with the effect of the transfer of these shares in the manner in which they were transferred and with the title thereto.

The evidence clearly establishes that the stock certificates were endorsed at the home of the defendant and that the endorsements were witnessed by a neighbor. Subsequently, the decedent and the defendant went to The Thomaston National Bank, delivered the certificates to the Cashier of the bank and directed him to send the certificates to the various corporations for transfer of the shares to them as joint tenants. Subsequently, some of the corporations required joint tenancy agreements to be filed with them before they would issue the joint tenancy certificates. One such agreement with The Knox County Trust Company was introduced in evidence. The other joint tenancy agreements were not produced and introduced in evidence. When the certificates so issued were returned from the various corporations, they were taken by the defendant and placed in the safety deposit box, heretofore referred to, in The Thomaston National Bank, which box stood in the name of ‘Charles T. Burgess or Charles M. Burgess'. The evidence disclosed that the only person who went to the box after the deposit of the certificates was the defendant, Charles M. Burgess, or someone at his direction. This box had been rented by Charles M. Burgess in the joint names as above but the decedent had never signed the bank rental card. When checks for dividends declared upon the various stocks were received they were endorsed by both Charles T. and Charles M. Burgess, cashed by the defendant who brought the money back, delivered it to the decedent, who deducted therefrom such amount as he desired to use and turned the balance over to Charles M. Burgess or to his wife. Certain Central Maine Power Company Preferred Stock was called and the decedent eventually received and retained the proceeds thereof, about one thousand dollars.

The Justice presiding who heard the case held that no joint tenancy was created by the transfer of these stocks and that the transaction was void as an attempted testamentary disposition not executed in accordance with the statute of wills.

The defendant claimed the determination of the issues raised by the bill in equity and the relief sought were beyond the equity powers of the court. He further claimed that as numerous shares of the corporate stock in question were in corporations, organized under the laws of, and located in, States other than the State of Maine, the validity of the transfers of such stocks should be determined according to the laws of the respective States where the corporations were organized. Counsel for the defendant requested that the Court take judicial notice of the laws of the several States of incorporation of each of the corporations whose stock is in issue, and counsel for the plaintiff agreed that reasonable notice had been given to the plaintiff. The Court required counsel to aid it in obtaining such information. The purpose of this request and stiplation was evidently to invoke the provisions of the Uniform Judicial Notice of Foreign Law Act, R.S. Chap. 100, Secs. 135-140, both inclusive, together with Sec. 141.

There is no merit to the defendant's contention that the subject matter and relief sought is beyond the equity powers of the Court under R.S. Chap. 95, Sec. 4, Paragraph 11.

The defendant, so far as the record shows, possessed the only key to the safe deposit box in which the securities were deposited, and the safety deposit box was registered in his name. No suit at law would be effectual.

Farnsworth, Administratrix v. Whiting et als., 104 Me. 488, 72 A. 314. Stock certificates are within the true meaning of the statutes authorizing suits in equity to compel delivery when so situated that they cannot be replevied. Farnsworth, Administratrix v. Whiting et al., supra, Reid v. Cromwell et al., 134 Me. 186, 183 A. 758. ‘Such possession and withholding, though not fraudulent, are enough to give the equity court the right to compel the surrender of the certificate. Equity has jurisdiction, both under the statutes * * * and under general equity jurisdiction. Farnworth, Adm'x. v. Whiting et al.’ Reid v. Cromwell et al., supra, 134 Me. at page 189, 183 A. at page 759.

This Court adheres to the common law rule that in the creation of joint tenancies, four essential elements must be present, unity of time, unity of title, unity of interest and unity of possession. Appeal of Garland, Appellant, 126 Me. 84, 136 A. 459, affirming Staples v. Berry, 100 Me. 32, 85 A. 303. This doctrine has since been approved in Portland Nat. Bank v. Brooks, 126 Me. 251, 137 A. 641; Reid...