Allerton v. Lang — 23 N.Y. Super. Ct. 362

Majority

p. 362

George W. Allerton, and Margaret R., his wife, Plaintiffs, v. William B. Lang and Anson Willis, Executors, &c., of Charlotte Dobbin, deceased, Defendants.

Headnote

A woman owning bank stock delivered a cloth pocket such as is usually worn by women detached from any garment, with a pocket-book therein, containing a certificate of the ownership of such stock, to a stepdaughter residing with her on the most intimate and affectionate terms, with the declaration, “ Here, I give you this; I make you a present of’it; I have another, and want you to wear them they are so very handy.” Held, that this was a valid gift of the stock. Such declaration is not to be considered as confined to the mere pocket without its contents, especially as the donor had just previously taken out therefrom, and replaced therein such pocket-book, after taking out of it two treasury notes for'fifty dollars 'each, and directing their presentation to a niece, and expressing an intention in favor of such stepdaughter in regard to certain houses.

(Before Robertson and Monell, J. J)

Heard, March 2, 1863;

decided, March 28, 1863.

This case was a controversy submitted upon an agreed statement of facts, to be determined by the Court without action, pursuant to section 372 of the Code of Procedure.

On or about the fifth day of April, 1862, Mrs. Charlotte Dobbin, of the City of Hew York, died in said city, leaving a will, whereby she appointed the defendants, William B. Lang and Anson Willis, her executors, and they afterward entered upon their duties as such.

Margaret E. Allerton, one of the plaintiffs, was the stepdaughter of Mrs. Dobbin, being the daughter of Mrs. Dobbin’s husband, now deceased, by a former wife; she was also one of the legatees named in the will of Mrs. Dobbin.

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Mrs. Allerton resided with Mrs. Dobbin at her residence, and they were on the most intimate and affectionate terms with each other.

About three weeks prior to the death of the testatrix, and prior also to her last illness, Mrs. Dobbin, being then in good health, while sitting in her bedroom with Mrs. Allertou, called the latter to her and said, “ Hand me the cloth pocket that you will find in that drawer,” pointing to a drawer in a bureau in her bedroom. This Mrs. Allerton did, and Mrs. Dobbin took the cloth pocket, opened it, and from a pocket-book inside thereof took two United States Treasury notes for fifty dollars each, which she handed to Mrs. Allerton, saying, “ Give this to Jane Carman; the houses in Oliver street are all yours.” Jane Carman, so mentioned by Mrs. Dobbin, was her niece.

After saying this, Mrs. Dobbin closed the pocket-book, and placing the same within the cloth pocket, said, “Here, I give you this; I make you a present of it; I have another, and want you to wear them, they are so very handy.”

Thereupon Mrs. Allerton took the cloth pocket containing the pocket-book, and without opening the same, kept it in her possession until after the death of Mrs. Dobbin, which occurred about three weeks afterward.

Mrs. Allerton was ignorant of the contents of the pocketbook ; she did not examine it, or the pocket containing it, until three days after the death of Mrs. Dobbin, when, on opening it, she found within the pocket-book a certificate for six shares of bank stock, standing in the name of Mrs. Dobbin.

On these facts the questions submitted to this Court for its decision were:

1. Did Mrs. Dobbin intend to make a gift to Mrs. Allerton of the six shares of stock, the certificate whereof was so found in the pocket-book hereinbefore mentioned, or did she intend merely to make a gift to her of the cloth pocket in which she had placed the said pocket-book ?

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2. Are the six shares,, of which the certificate was so found in the pocket-book, the property of the plaintiffs or of the defendants as executors ?

It was agreed by the parties that should the Court adjudge the stock to be the property of the plaintiffs, a decree or order should be made, directing the executors to convey or assign it to Mrs. Allerton, and that the costs of the proceeding be paid, out of the estate.

The case was submitted by Oscar Smedberg, without argument, upon the following points :

Points for the plaintiff:

I. Mrs. Dobbin and Mrs. Allerton were on the most intimate and affectionate terms. Mrs. Allerton was her stepdaughter, and lived with her, and Mrs. Dobbin would naturally be disposed to do her a kindness.

II. Mrs. Dobbin knew what was in the pocket-book, and if she had not intended to give the stock, she would have taken out the certificate before the delivery of the pocket-book.

III. Transfer from hand to hand, with such words, is a good delivery and assignment as between the parties, even of a chose in action, unless it be expressly shown that the donor was ignorant of the contents of the article delivered. {Heath v. Hull, 4 Taunt., 326; Boberts on Frauds, 275; Green v. Hart, 1 Johns., 580 ; Ganfielcl v. Monger, 12 Id., 346; Prescott v. Hull, 17 Id., 284; Langdon v. Buel, 9 Wend., 80 .)

IV. There can be no doubt that Mrs. Dobbin took this method of doing an unostentatious act of kindness. Her words may apply, and, no doubt, were intended to apply as well to the contents of the pocket as to the pocket itself. She, no doubt, thought a certificate of stock the same as a treasury note, as to the requisites of its legal transfer.

Points for the defendants:

I. There was no legal transfer. A chose in action is not transferable by mere manual delivery.

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II. There were no words used, to import a gift. The force of the words, “Here, I give you this,” &c., was expressly restricted by the words following, viz., “I have another, and want you to wear them; they are so very handy."

III. Mrs. Dobbin had no intention to transfer the certificate of stock. She was evidently ignorant that it was in the pocket-book.

It appears by the ease submitted that Mrs. Allerton was the stepdaughter of the decedent, Mrs. Dobbin, resided and was on the most intimate and affectionate terms with her, when the transaction took place which is the subject of the controversy. It also appears that a Mrs. Carman was a niece of the decedent.

The occasion of making the gift in question was evidently one in which the testatrix felt disposed to make gifts, as she took from the pocket-book in the pocket the treasury notes which she directed Mrs. Allerton to give to Mrs. Carman. It is also plain that she did not intend to confine her gift to the pocket, although she spoke of Mrs. Allerton’s wearing it and its being very handy, because she deliberately replaced the pocket-book in it, before presenting it. There is no evidence that she was ignorant of the presence of the certificates of stock in the pocketbook, and it is to be assumed she knew it. The fact of its being a repository of other similar valuable evidences of debt, would seem to imply that it was intentionally the place of safe keeping of such certificate. Besides this, she had just announced to Mrs. Allerton an intended gift of real estate to some amount. There appears to be no reasons for her giving the pocket-book with the pocket without the contents of the former. If useful to her before as a repository, it would have remained equally so, if she supposed she had the certificate elsewhere to put in it.

An evidence of debts may be transferred by delivery with intent to assign.. (Runyan v. Mersereau, 11 Johns.,

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534 ; Dawson v. Coles, 16 Id., 51; Prescott v. Hull, 17 Id., 284; Morange v. Edwards, 1 E. D. Smith, 414; Langdon v. Buel, 9 Wend., 80 .) I think there is no doubt of Mrs. Dobbins’ intention in this case to give the stock to Mrs. Allerton.

There must, therefore, be judgment in favor of Mrs. Allerton, that the executors transfer to her the shares of stock in question on the books of the bank, and that the costs of Mrs. Allerton be paid out of Mrs. Dobbins’ estate by her executors. .