In re the Judicial Settlement of the Accounts of Crawford

Some of the entries, if not all, were in. his handwriting. The coupons for the semi-annual interest had been cut off by him, and collected for him, as they became due subsequent to the purchase, excepting those which were due six months prior to his death, and those coupons had not been detached from the bonds. The proceeds of the coupons which had been collected had been passed to his credit by the bankers who collected them. It appeared in evidence that the donor had given direction to his bankers to purchase the bonds, and he stated at the time that he wanted them purchased for Carrie, (the intended donee), and after they had been purchased, he directed his banker to have them registered in her name, and the banker thereupon took them to the office of the company and the name of the intended donee was indorsed upon each bond, together with the date of such indorsement and the name of the transfer agent. The bonds were-then brought back and delivered to the donor, who kept them thereafter, as above stated. There is no evidence that the donee knew anything of _ the transaction, or that she was ever aware of anything concerning the intended gift.

Upon these facts we do not see that there was ever any •delivery of the bonds. Nothing appears in the case as to what was the effect of the so-called registry. We are not prepared to hold that the simple indorsement on a bond payable to bearer of the name of another party than the true owner, made at his request and at the office of the company issuing the bond, and by an officer thereof, passes the title to the bond. to the party whose name is thus indorsed. An owner of a bond may intend to give it to another, and for that purpose he may obtain such an indorsement, but that does not constitute a delivery of the gift to_ such person. The owner may subsequently change his mind, and we do not say that he could not effectuate such change without the aid of an intended donee to whom h.e had never delivered the gift.

The most that the evidence shows is an intention to make a, gift of these bonds, but the material fact of a delivery is entirely unproved, and cannot be implied from the evidence. The case has nothing in common with that of Martin v. Funk, 75 N. Y., 134 , and kindred cases. There was a declaration of trust in those cases, in such form that the donor stated that he was, and he thereby became a trustee for the donee and the deposit or -gift was made in that character. Nothing of the kind exists here.

Neither can it be successfully argued, that the delivery of the bonds by the donor to the banker to have them registered in the name of the donee, was a delivery to the agent of the donee. It was just what it purported to be on its

face, a delivery of the bonds to his own banker, who had purchased them under his own directions, and the banker •continued to act as the agent of the person under whose •directions he purchased them when he had the bonds registered as he was by him directed to do.

Nor does it seem that any aid is furnished the respondent by reference to the act of 1871, chapter 84. That act provides for a registry of railroad and other corporate mortgage bonds, payable to bearer, for which a registry is not by law provided, which have been or may thereafter be issued and made payable in this state, so as to render such bonds non-negotiable. The act would seem to refer only to bonds which have been or may be issued and payable in this state. The bonds in question were issued in the state of Virginia, and payable in Philadelphia or New York, the principal in 1921, and the interest semi-annually.

But even if applicable to these bonds, the registration had no effect upon the coupons, and the possession of the bonds by the original owner, gave him complete control over the coupons, and entire power to collect them and otherwise dispose of them. And, again, even if the registry rendered the bonds themselves non-negotiable, we do not see that such fact absolutely changed the legal title to them, while the original owner continued to hold them and failed to carry out his intention to give, by a delivery of the bonds to the donee. To render a bond non-negotiable, by the mere registry of it in the name of another, is not, by any means, the same in law, or, in fact, as the transfer of the title to the instrument, to the party in whose name it may be registered. The title does not pdss until a delivery of the bond to the person intended, or to some’ one for him, although the general negotiability of the bond may have been destroyed by the endorsement. If an owner of shares of stock in a corporation, intending to give them to A., should take the scrip to the office of the company and surrender it, and receive new scrip in the name of A., has he by this mere change of title on the books of the company, while retaining the entire possession and control of the scrip, and without any delivery thereof to A., accomplished a valid, executed gift of the ownership of the shares to his intended donee? We should say clearly not. In this case the bonds belonged to the donor, as all agree, up to the time of the delivery for registry. After that, even if it be assumed that they were, in consequence thereof, rendered non-negotiable, how does that change the title? How does it divest the original owner of his right to the bond, and to its possession and control? Could the intended donee maintain an action against the donor to obtain its possession? We think not, and for the very good reason that it would not belong to him.

What the particular rights of the original owner, as against the company, might be, and how he should proceed in case he met with a refusal of the company on his

demand to erase the registry, are questions not now arising. We are of the opinion, however, that if it be conceded that the donor intended to give these bonds away, he never accomplished such purpose by any valid delivery thereof, and they remained his property at the time of his death.

We also think that there was no addemption of the legacies to Mrs. Crawford by the gift of the money. We are not able to see how a legacy can be addeemed by a gift made before the execution of the will in which the legacy was given. _ The small deposit which was made subsequent to the making of the will was but carrying out a purpose entertained long prior thereto, and the legacy contained in the will was not, as we think, addeemed pro tanto by the deposit mentioned.

One question is raised as to the admissibility of evidence. Mr. Clark, one of the accounting executors, was called as a witness, and on his cross-examination by counsel for Mrs. Crawford, testified to several conversations which he had had with the testator, where the latter stated his intention to make the deposit of money to the credit of his daughter, or stated that he had made a deposit to her credit, and that his intention was to make the fund up to $200,000 in his lifetime, if possible.

It is objected that the evidence thus received was incompetent under section 829 of the Code, and also-because it was a declaration of the. intestate which did not accompany an act, and was not a part of the res gestee.

If it be assumed that the evidence was erroneously received on both grounds, we do not think that any reason exists for reversing the determination of the surrogate as to the moneys deposited. Striking out all the objectionable evidence and there remains enough uncontradicted and legal evidence to call for the decision of the question of gift, or no gift, in the same way as it now stands. The same question, arising under the evidence of Dr. Boyd, may be answered in the same way.

The account in the trust company’s books, in the absence of anything else, would show the moneys to be the property of Mrs. Crawford. Mr. Rolston, the president of the company, showed that Mr. Townsend deposited moneys; or checks, drawn by him to the credit of Mrs. Crawford’s account. Still, in the absence of any other evidence, the presumption would arise from such a deposit, to the credit of a third party, that the money thus deposited became the property of the person to whose credit it was so deposited. The evidence of Mr. Clark or Dr. Boyd does not alter the presumption, but it is in line with it. Strike it out and there is evidence sufficient remaining (which is uncontradicted) to demand the decision which the surrogate made.

Without, therefore, deciding the question as to the admissibility of the evidence, we think the surrogate’s decision regarding the gift was proper in any event.

Lastly, we think the court, at general term, was right in awarding double commissions. As executors, it was their duty to pay the debts of the deceased, and then all the residue of his property which was not devised or bequeathed to others, was, by the third clause of the testator’s will, given to the executors in trust for the purposes therein mentioned. They were authorized to sell all the real estate thus devised to them, and they were then directed to divide all the property they received into thirty-two equal parts, and to invest in their names as trustees of his will, five parts for the benefit of his daughter, Mrs. Meagher, and to pay over to her the interest and income thereof during her life, and upon her decease to transfer the same as therein directed. Eight of such thirty-two parts were to be invested in their names as trustees under his will, for the benefit of his daughter, Mrs. Barlow, and the interest and income thereof were to be paid to her during her life, and upon her death the property was to be transferred as directed in the will; and the remaining nineteen parts were to be similarly invested, and on the same terms, for the benefit of his daughter, Mrs. Crawford, during her life, with remainder over.

We think, that after the sale of the real estate and the payment of debts, the duty of the executors ended by the payment to the trustees of the thirty-two parts into which the estate directed to be paid over to them was to be divided. From that time the duties of the trustees commenced, and they were to invest in their names, as trustees, the five, eight and nineteen parts respectively, in accordance with the directions of the will. At the death of the testator’s daughters respectively, the trust estate is to be paid by them as trustees and not as executors. This gives them the right to double commissions.

The order of the general term should be modified by charging the executors with the twenty Shenandoah Valley bonds, and, as modified, affirmed, with costs of all parties to be paid out of the estate.

All concur.