Tomkies v. Tomkies

• Decision Date: 17 June 1975
• Docket Number: No. 13143,13143
• Court: West Virginia Supreme Court
• Parties: D. C. TOMKIES v. Charles Elbert TOMKIES, Admr., etc., et al., and the National Bank of Summers, etc.

Page 652

215 S.E.2d 652

158 W.Va. 872

D. C. TOMKIES v. Charles Elbert TOMKIES, Admr., etc., et al., and the National Bank of Summers, etc.

No. 13143.

Supreme Court of Appeals of West Virginia.

June 17, 1975.

Syllabus by the Court

1. Failure to comply with the requirements of Rule 52(a), W.Va.R.C.P. authorizes the appellate court to make independent factual determinations without resorting to remand where the record contains sufficient dispositive facts for decision.

2. Where a valid Inter vivos gift is intended, the donor must be divested of, and the donee invested with the right of property in the subject of the gift. Accordingly,

the act of donation must be absolute, irrevocable, and immediate, without any reference to its taking effect at some future period and the donor must deliver the property and part with all present and future dominion over it.

3. The elements of proof required to sustain an Inter vivos gift of corporate stock are the same as those required to prove a valid Inter vivos gift of other personalty.

4. The mere possession of the subject of an alleged gift, unaccompanied by proof of its delivery by the donor to the donee, is insufficient to establish it as a valid Inter vivos gift.

5. The standard of evidence required to establish an Inter vivos gift must be clear and convincing on every element necessary to constitute the gift.

6. To sustain a Parol gift, it must be shown by clear and convincing proof that the donor made delivery and relinquished all dominion and control over the thing delivered, and that the donee accepted the gift.

7. 'When the finding of a trial court in a case tried by it in lieu of a jury is against the preponderance of the evidence, is not supported by the evidence, or is plainly wrong, such finding will be reversed and set aside by this Court upon appellate review' Syllabus point 8., Bluefield Supply Company v. Frankel's Appliances, Inc., 149 W.Va. 622, 142 S.E.2d 898 (1965).

Carney M. Layne, Huntington, Harold B. Eagle, Hinton, for appellant.

Frederick W. Sawyers, Hinton, for appellees.

HADEN, Chief Justice:

This is an appeal by D. C. Tomkies from a final order of the Circuit Court of Summers County denying appellant's claim, asserted as a beneficiary of the estate of Toney C. Tomkies, deceased, that 245 shares of capital stock in The National Bank of Summers, registered in the decedent's name, was the property of the decedent at his death and an asset of his estate. The order appealed from held that the stock in question had been the subject of an Inter vivos gift transferred by Toney Tomkies to the appellees, Sarah Frances Blethen, Clara Elizabeth McKeever, Charles E. Tomkies and Frank C. Tomkies, the children of a deceased brother, Frank H. Tomkies.

The overriding issue of the case is whether the evidence supports the trial court's ruling that the bank stock was the subject of a valid Inter vivos gift.

Toney C. Tomkies died intestate on February 6, 1967, leaving as his surviving heirs, a brother, D. C. Tomkies, the appellant, two sisters, Naomi Senerad and Frances Rogers, and the four previously named children of the deceased brother, Frank H. Tomkies, appellees. At his death, the decedent was the record owner of 245 shares of stock in The National Bank of Summers, as reflected by four separate stock certificates issued by the Bank at different times in 1956 and 1963. Documentary evidence revealed that the endorsement clause on each certificate contained the signature of Toney Tomkies and the appellees' names, indicative of an assignment to the appellees. Three of the purported assignments, representing 161 shares, had been executed in the presence of Frank H. Tomkies and were dated in 1960 and 1964. The fourth, representing 84 shares, had been witnessed by Harry S. Blethen, Jr., the then husband of Sarah Blethen, in 1959.

Shortly after Toney Tomkies' death, his estate appraisers included the bank stock in the list of assets of the decedent's estate. Thereafter, however, the administrator took the position, ultimately sustained by the trial court, that the stock had been the subject of a valid Inter vivos gift and was, therefore, not a part of the estate. Then, at the direction of the administrator, the issuing bank effected a record transfer of the stock shares from decedent's name to the names of the individual appellees. The appellant excepted to the removal of the stock from the assets of the estate, but the commissioner of accounts, to whom the estate had been referred, refused to assume jurisdiction to adjudicate the dispute. Quite properly, the county court later sustained the commissioner's position that the probate arm of the county court was not a proper forum to determine ownership of stock. See In Re Long's Estate, 122 W.Va. 473, 10 S.E.2d 791 (1940). In order to save the point, D. C. Tomkies appealed the decision of the county court to the circuit court and, also, contemporaneously instituted an independent civil action demanding a judicial determination as to the true ownership of the disputed shares. The trial court consolidated the appeal and the civil action, took evidence, and then rendered the decision assailed as erroneous here.

At trial, the appellant introduced uncontroverted evidence that the stock certificates remained in the record ownership of Toney Tomkies from the date of issuance until subsequent to his death in February 1967; that the decedent was the payee of bank drafts which represented all of the dividends paid on these shares of stock during the period of his ownership; and that the decedent consistently voted the shares of stock at shareholders' meetings held during his lifetime. Additionally, the decedent, from 1965 until his death in 1967, served as a member of the Board of Directors of the Bank and received compensation for his services as a director. According to the Bank's bylaws, to be eligible to serve as a director, a person must own not less than 40 shares of stock standing in his own name. The decedent owned no shares of stock in the Bank other than the 245 shares which the lower court later determined were owned by the individual appellees pursuant to the Inter vivos gift.

On the other hand, the administrator and, also, individual appellee, Charles Elbert Tomkies, offered evidence from the former husband of Sarah Blethen, Dr. Harry S. Blethen, Jr., who testified, over objection, that the decedent told him that he intended to leave the bank stock to the children of Frank H. Tomkies. Further, that in Blethen's presence on January 31, 1959, Toney C. Tomkies executed an endorsement in favor of Frank H. Tomkies' children on the stock certificate representing 84 shares, and that Frank H. Tomkies took possession of the stock at that time. The administrator also introduced evidence from the executive vice president of the Bank who indicated that Frank H. Tomkies, rather than Toney C. Tomkies, was the 'boss of the family' and was the responsible person with whom the Bank dealt in regard to its business and questions of stock ownership and control within the Tomkies family. In that regard, various members of the Tomkies family had been shareholders and members of the Bank's board of directors continuously since the year 1927.

In argument, the appellees also implied that the record ownership of bank stock continued in the name of Toney C. Tomkies merely for the purpose of giving him the right to continue to serve on the Bank's board of directors. Additionally, the appellees consistently maintained that the custody of all of the bank stock had been given to and held by Frank H. Tomkies until his death. Subsequent possession of the certificates was then apparently obtained and transferred through Charles E. Tomkies.

Evidence was also adduced that the dividend checks, although payable to Toney Tomkies, were mailed to Frank H. Tomkies at his Huntington post office box at Frank H. Tomkies' direction. Dr. Blethen testified that his former wife, Sarah, received and paid taxes upon a portion of the dividends for a period of time between 1959 and 1963.

This Court's summary of the relevant evidentiary aspects is perhaps at variance with what was considered important by the trial court. In that regard we note that the disposition of this case was impeded, materially, by the trial court's failure to make adequate findings of fact as required by Rule 52, W.Va.R.C.P. See, Commonwealth Tire Co. v. Tri-State Tire Co., W.Va., 193 S.E.2d 544 (1972). Notwithstanding this deficiency, there appears to be sufficient salient evidence in the record to warrant disposition of this appeal on the merits, without remand. See, City of Morgantown v. Town of Star City, W.Va., 195 S.E.2d 166 (1973).

The appellant contended below, and now here, that Charles Tomkies violated his fiduciary duties to the estate of Toney C. Tomkies by causing a transfer of said shares of stock from the estate to the Inter vivos claimants, and secondly, that he violated his fiduciary duty as Committee for Frances Rogers, a beneficiary of the estate, when he transferred the stock against her interest. The court below did not pass upon these contentions and this Court will not rule upon nonjurisdictional errors presented in this posture. Parker v. Knowlton Construction Company, Inc., W.Va., 210 S.E.2d 918 (1975); Pettry v. Chesapeake & O. Ry. Co., 148 W.Va. 443, 135 S.E.2d 729 (1964).

The main contention of the appellant is that the purported transfer of the bank shares of stock by the decedent within his lifetime to the individual appellees was ineffectual in that (1) there was no transfer of ownership; (2) there was no delivery; and (3) Toney C. Tomkies retained dominion and control over the shares of stock and exercised the rights of ownership until his death.

The appellant also attacks as incompetent, the testimony of Dr. Blethen, as violating the 'dead man's statute' in that (1) it was testimony given against the interest of the decedent; ...