York's Ancillary Adm'R v. Bromley

• Decision Date: 28 February 1941
• Parties: York's Ancillary Adm'r v. Bromley et al.
• Court: United States State Supreme Court — District of Kentucky

286 Ky. 533

York's Ancillary Adm'r v. Bromley et al.

Court of Appeals of Kentucky.

February 28, 1941.

1. Executors and Administrators. — An administrator cannot question a conveyance of real estate by testator.

2. Executors and Administrators. — In action by administrator for adjudication of rights in certain property, where one of legatees alleged by answer and counterclaim that stock had been given to her by testator, lack of capacity and undue influence were proper defenses for other legatee to incorporate in his answer to the counterclaim.

3. Appeal and Error. — Where administrator of father's estate refused to prosecute appeal from judgment decreeing that daughter was owner of certain bonds and notes, the administrator of son's estate was entitled to prosecute appeal for use and benefit of the father's estate.

4. Witnesses. — In action by administrator of father's estate against children and others to obtain adjudication concerning rights in certain property, neither son nor daughter was a competent witness to testify for themselves as to any transactions or conversations had with their father, but such testimony of either of them as did not relate to transactions or conversations with the deceased father was competent (Civil Code of Practice, sec. 606, subds. 1, 2).

5. Witnesses. — In action by administrator of father's estate against children and others to obtain adjudication concerning rights in certain property, son was a competent witness to testify that he had had possession of stock, that he kept it at his home, and that it had never been out of his possession, and daughter was competent to testify that she had had possession of certain bonds and notes at her father's death, but neither of them could testify that their father gave them the respective securities which they had in their possession (Civil Code of Practice, sec. 606, subds. 1, 2).

6. Witnesses. — In action by administrator to secure an adjudication regarding rights in certain property, where widow's only interest in estate was a monthly income fixed by will, and she had no interest in the litigation, although made a party defendant, widow was competent to testify that decedent had indorsed stock certificates to son, that she signed as a witness to his signature, and that decedent gave the stock to son, as against objection that widow was testifying for herself against the estate and concerning facts coming to her knowledge by virtue of the marriage relation (Civil Code of Practice, sec. 606, subds. 1, 2).

7. Gifts. — Testimony by widow that decedent had indorsed stock certificates, that she witnessed his signature, and that he then handed the stock to son who took possession thereof, coupled with testimony of son that stock was never thereafter out of his possession, established that the stock had been accepted as a gift, notwithstanding testimony by treasurer of corporation that decedent had brought the stock to treasurer complaining that he was not receiving full amount of the dividends.

8. Gifts. — A "gift inter vivos" is a completed or executed gift which takes effect by relinquishment of title or control and is completeed by actual, constructive or symbolic delivery without right of revocation, coupled with acceptance by the donee.

9. Corporations. — An assignment duly executed on the back of a stock certificate followed by an unqualified delivery to the assignee transfers the stock as between the parties though the stock is not transferred on books of the corporation.

10. Gifts. — The reservation by donor during his lifetime of dividends on stock did not destroy validity of gift of the stock to son.

11. Gifts. — Gift of stock to son was not incomplete because donor did not inform corporation of the gift and because he continued to serve as a director and officer of the corporation (Ky. Stats., secs. 545, 546).

12. Gifts. — The statutes requiring that shares of stock be transferred on books of corporation are for protection of the corporation only and transfer of stock to son was not effective as to the corporation until its records reflected that fact, but as between donor and son, the transfer was complete when donor signed transfers on back of stock certificates and delivered the certificates to son with intention to make a gift thereof (Ky. Stats., secs. 545, 546).

13. Gifts. — Testimony by attorney to whom notes had been given for collection that owner upon retaking possession thereof stated that he had given the notes to daughter, coupled with evidence of daughter's possession, established a gift thereof to daughter.

14. Gifts. — Possession of bonds by daughter after father's death or sale thereof by daughter during her father's lifetime and retention of proceeds would not establish a gift thereof by father to daughter, since such would not be inconsistent with custody as agent, particularly where, during last years of father's life, the daughter largely managed and controlled his personal estate.

15. Appeal and Error. — Where chancellor found that testator had sufficient mental capacity to make certain gifts inter vivos, and the Court of Appeals on review of the evidence could not say that finding was contrary to preponderance of the evidence, the finding could not be disturbed.

16. Evidence. — Where expert testimony regarding genuineness of signature on transfer indorsed on back of stock certificate was about equally divided, the direct and positive testimony of an intelligent and distinterested witness that she saw the transfer signed and then affixed her signature thereto as a witness was controlling on such issue.

Appeal from Lawrence Circuit Court.

Woods, Stewart & Nickell and Chesley A. Lycan for appellant.

S.S. Willis and C. Fred See, Jr., for appellees.

Before Watt M. Prichard, Judge.

OPINION OF THE COURT BY SIMS, COMMISSIONER.

Affirming in part and reversing in part.

Dr. L.H. York died testate on Sept. 19, 1935, at the age of 84, leaving a widow, Mrs. Pamelia G. York, 80 years of age, a son, Charley York, 48 years of age, and a daughter, Mrs. Mary Bromley, whose husband, Dr. A. W. Bromley, had been associated with Dr. York in the practice of medicine. Dr. York was a man of considerable property and his will executed on Feb. 21, 1922, provided for the payment of $40 per month to his widow and directed that the balance of his property be divided equally between his two children. The will further provided that if it took more than $40 per month for the maintenance in comfortable circumstances of Mrs. York, such additional sum should be supplied in equal amounts by the two children; that any gifts he had made his children, or in the future might make them, should not be charged as advancements.

Charley York was addicted to the use of liquor and appears not to have been engaged actively in business but assisted his father in the management of his rather large estate. Dr. York operated the River View Hospital in Louisa, was vice-president of the Louisa National Bank, also vice-president of the Louisa-Fort Gay Bridge Company, and was an extensive lender of money in both Kentucky and West Virginia. He paid Charley a salary of $75 per month for his services and in addition thereto gave him large sums of money and several pieces of real estate. Dr. York retired from the practice of medicine and surgery in 1932, at the age of 80, leasing his hospital to Dr. J.E. Carter, and from that time Charley took greater charge of his father's business and he alone had the combination to Dr. York's safe. In the spring of 1933, Charley bought a farm for $12,500 cash in Hightown, Va., which money he received from his father. Soon thereafter he moved to this farm with his family, making periodic visits to Louisa to attend to business for his father. There is testimony that Dr. York would complain at times that he did not have the combination to his safe and had to wait until Charley would return from Virginia before he could get his papers therefrom — that he was going to take a hammer and break the combination.

When the will was probated, Charley had in his possession certificates for 36 shares of stock in the Louisa-Fort Gay Bridge Company (hereinafter referred to as the stock), claiming it was a gift from his father on Jan. 4, 1927, by assignments on the back of the certificates accompanied by a delivery thereof. Mrs. Bromley claimed this stock as a gift from her father by a formal writing he executed and delivered to her on Nov. 30, 1934, which was recorded in the Lawrence County Court Clerk's office on Dec. 1, 1934, wherein he assigned the stock to her. Mrs. Bromley asserted title to the hospital property by virtue of a deed executed and delivered to her by her father on Nov. 29, 1934, which was recorded in the Lawrence County Court Clerk's office on Dec. 1, 1934; also, Mrs. Bromley claimed $1,500 in Home Owner Loan bonds (hereinafter referred to as the bonds), and a great number of notes having a face value of some $10,000 as a gift from her father about one year before his death.

J.L. Moore, administrator with the will annexed of the estate of Dr. York, instituted this action against the widow, the two children, and the Bridge Company, setting up the claim of each child to the above property and asking the court to adjudge it belonged to neither but to the estate. The administrator further alleged Charley was indebted to the estate for large sums of money advanced to him; that the attempted renunciation of the will by the widow was improperly executed, and as the time had expired for a proper renunciation to be filed, she must take under the will; also, he sought the advice of the chancellor in handling the estate. That paragraph of the administrator's petition which attacked the deed to Mrs. Bromley to the hospital property was stricken on motion, since an administrator cannot question a conveyance of real estate.

By an answer and counter-claim Mrs. Bromley set up her claim to the stock, the bonds...